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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McGonnell v. A.G. & Anor [2004] IEHC 312 (16 September 2004)
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Cite as: [2004] IEHC 312
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- In each of the above joined cases, all of which were heard together, the relief claimed by the individual plaintiffs is identical, save as to date, and as appears from their respective statements of claim, is described as follows:-
- The plaintiff, Ashley McGonnell, was arrested on 17th September, 2000 pursuant to s. 49(8) of the Road Traffic Act, 1961 and having been brought to Monaghan Garda Station was there required, by a member of An Garda Síochána who was of the opinion that the arrested person had consumed an intoxicant, to provide, two specimens of his breath under s. 13(1) (a) of the Road Traffic Act, 1994, (hereinafter referred to as the Act of 1994) by exhaling into an apparatus, known as "The Lion Intoxilyzer 6000", for determining the concentration of alcohol in the breath. Having duly complied with this statutory direction, the resulting reading of the first specimen showed 44 micrograms of alcohol per 100 ml of breath and in the case of the second sample showed 44 micrograms of alcohol per 100 ml of breath. Having disregarded the higher reading in accordance with s. 17(1) of the Act of 1994, the lower concentration, by virtue of this subsection "shall be taken into account" for the purposes of s. 49(4) of the Road Traffic Act, 1961 (hereinafter referred to as the Act of 1961). Pursuant to s. 17(2) of the Act of 1994 this plaintiff was then supplied "with two identical statements automatically produced by the said apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in the said specimen determined by the said apparatus". These statements, which purely for convenience may be referred to as "the section 17 (2) certificate" indicated that for the purposes of the said section 49(4) of the Act of 1961, the relevant concentration of alcohol in this persons breath was, by reason of circumstances later described in this judgment, 36 micrograms of alcohol per 100 ml of breath. Since the permitted minimum within the law, as provided for by s. 49(4) of the Act of 1961, as substituted by s. 10 of the Act of 1994, is 35 micrograms of alcohol per 100 millilitres of breath the accused person was ultimately charged with an offence under s. 49 of the Road Traffic Act, 1961. That offence, in general terms can be described as driving a mechanically propelled vehicle in a public place whilst over the legal breath/alcohol limit. Pending the outcome of this challenge the said prosecution stands adjourned in the District Court.
- The plaintiff, Oliver Quinlan, was similarly arrested on 26th April, 2000 and brought to Pearse Street garda station in Dublin. There, under the said legislative provisions, he was required to provide two specimens of his breath, into a similar apparatus. The readings which resulted showed in the first instance a concentration of 89 micrograms of alcohol per 100 ml of breath with the second showing 83 micrograms of alcohol per 100 ml of breath. Having disregarded the higher reading, the s. 17(2) certificate, for the purposes of s. 49(4) of the Road Traffic Act, 1961, as substituted by s. 10 of the Act of 1994 stated that the relevant concentration was 68 micrograms of alcohol per 100 ml of breath. As with the first plaintiff, this individual was subsequently prosecuted under s. 49 of the Road Traffic Act, 1961 with a similar offence. That District Court prosecution awaits the outcome of this case.
- The third plaintiff John Purcell was arrested on 26th February, 2001 and at Tallaght Garda Station Dublin was required to comply with s. 13(1)(a) of the Act of 1994. On that occasion the apparatus in use was not the Lion Intoxilyzer 6000 but rather one known as the "Intoximeter EC/IR". The readings obtained showed respectively concentrations of 73 and 70 micrograms of alcohol per 100 ml of breath. The s. 17(2) certificate in this case, calculated for the purposes of s. 49(4) of the Act of 1961, showed that the relevant reading was 57 micrograms of alcohol per 100 ml of breath. As with the other two plaintiffs, Mr. Purcell was prosecuted with an offence under s. 49 of the Act of 1961, and his case likewise is dependent on this judgment.
- As can immediately be seen, there are several sections of the Road Traffic Act, 1994, which are highly relevant to the issues raised in these cases and accordingly, at the outset of this judgment, it is I think opportune to set out the material parts of ss. 13, 17 and 21 of that Act. These provisions therefore read as follows:-
- In addition to the above, s. 18 of the Act of 1994 was also referred to as indicating what the procedure is when either a blood or urine sample, but not a breath sample, is required and given. In the case of either blood or urine that section provides the following:-
- And finally under s. 26(4) of the Act of 1961, as substituted by s. 26 of the Act of 1994 a person convicted of an offence of having a concentration in excess of 35 micrograms but not exceeding 44 micrograms of alcohol per 100 ml of breath, automatically faces a consequentional disqualification on the first offence of three months, or six months on a second or subsequent conviction. If the relevant concentration is greater than 44 micrograms but does not exceed 66 micrograms then on first conviction the automatic disqualification period is one year rising to two on any later conviction. Any reading greater than 66 micrograms carries automatic disqualification for two years rising to four years on a second or subsequent offence.
- Following the service of like statements of claim in each case, particulars were raised and replied to and a notice to admit facts duly answered. From these documents the case advanced on behalf of the plaintiffs was particularised as follows:-
- On behalf of the defendants, a similar defence was filed in each of these said cases. This defence contains a denial of the allegations made on behalf of the plaintiffs and asserts that "the accuracy of the aforesaid readings may be tested and challenged in such manner and/or by such evidence as the plaintiff (s) may wish or be advised". See para. 12 thereof.
- As part of the viva voce evidence in this case there were several highly qualified and highly distinguished individuals who were called upon to give evidence. On behalf of the plaintiff, Dr. Deane, who has a joint Science Degree in Chemistry and Mathematics from Trinity College, Dublin and a Ph.D. in Physo Analytical Chemistry from Dublin City University, was first to be called to give evidence. He was followed, in support of the plaintiffs' case by Mr. Christopher Cuffe, a Mechanical Engineer who has a Masters in Industrial Engineering from University College Dublin and a Post Graduate Certificate in Advanced Material Science from the University of Surrey. He dealt with his experience, gained over the past three years, of having inspected, tested and reported on the Intoxilyser/Intoximeter operational in this country. He has been retained in about forty law cases involving a variety of challenges to the underlying legislation.
- The first witness called on behalf of the defendants was a Mr. Blyth, who is the head of calibration at the company which manufactures the Lion Intoxilyser 6000 IRL. From an engineering background, he and fellow employees of Lion Laboratories have been in contact with the Medical Bureau of Road Safety in this country since 1990 with a view to supplying the apparatus, which for convenience is now called the Intoxilyser. His evidence covered the individual components of this machine and its working operations, including its design and use parameters. He was followed by Mr. Paul Cunliff who is the general manager as well as Head of Laboratory at Intoximeters U.K. Limited, which is the manufacturer and supplier of the apparatus used in the case of Mr. Purcell, and which for convenience can be referred to as the Intoximeter. Only two of such machines are operational in this country with all of the other breath testing apparatus being Intoxsilyers.
- From Linkoping University in Sweden came Professor Alan Wayne Jones who holds that post in the field of Experimental Alcohol Research in the Department of Bio Medicine and Surgery at the National Laboratory of Forensic Chemistry in Linkoping. He has a Ph.D. in Philosophy and holds a D.Sc degree. In 1985, he was appointed by the Swedish Government as Head of the Alcohol Toxicology section of the Swedish National Laboratory of Forensic Chemistry in Linkoping. He has published widely on his specialised subject, namely forensic aspects of alcohol and other drugs of abuse. Against the background of extensive research and his own experience, he commented on both breath testing machines and concluded that the system in operation in this country is in his words "inherently reliable". Finally, Ms. Leavy, who is the Chief Analyst with the Medical Bureau of Road Safety in this country, was called and gave evidence explaining the background history and the incorporation into the statutory provisions of the Road Traffic Code, as the concept and practice of breath testing. She explained a number of safeguards, either statute based or as a result of administrative decisions, and how and in what way these play a part in the operational use of these said machines.
- Overall, it can be said that Dr. Deane and Mr. Cuffe expressed a wide variety of criticisms, at different levels and in varying degrees of intensity, on the design and end use of the breath testing apparatus domestically in operation. On the other hand, all of the witnesses called on behalf of the defendants, within their own particular discipline, supported the end use of this method of testing a person for varying levels of alcohol in one's body. As the evidence of the latter witnesses unfolded, both Dr. Deane and Mr. Cuffe offered concessions in varying degrees to the said views so expressed.
- The details of the evidence of each respective witness, is much more fully set forth later in this judgment. The present reference to it only being necessary at this juncture, in order to establish the background against which counsel on behalf of the plaintiffs, and counsel on behalf of the defendants, made their submissions. Before turning to these submissions however, it would be of assistance I think, to set out in brief form how and in what manner these machines operate.
- The Lion Intoxilyser consists of an infrared source attached to one end of a gas chamber through which the exhaled breath enters at one side and is discharged at the opposite side. At the other end of this chamber there is a filter which is connected to an infrared detector which in turn is linked to measuring electronics, which eventually lead to the computer section of this instrument. As a result of these linked components the machine is capable of separating or distinguishing light sources of both a primary and secondary nature. These sources have the ability of recognising ethanol, which is the alcohol found in commonly consumed drinks, but also has the capacity to identify other substances such as methanol, n-propanol and iso-propanol. These, though all types of alcohol, are not commonly found in alcoholic drinks consumed by individuals and thus are treated as interfering substances. If their presence should be detected at a level above a specified threshold, then the machine will abort. In the absence of such substances, if alcohol (ethanol) is introduced into the chamber, then this substance absorbs some of the light passing through that chamber so that less light falls on the detector. This change in light intensity is interpreted by the instrument, in terms of the concentration of alcohol in that sample. The greater the concentration of alcohol in the breath sample then the greater the amount of infrared light that is absorbed. This is known, as Beer's Law – Beer being the scientist who gave his name to this principle, firstly so described by him in 1852. The resulting signal is then converted, amplified, and processed. The end result is that the particular concentration of alcohol, in the specimen of breath supplied, is calculated and the result produced.
- In accordance with s. 17(2) of the Act of 1994, the apparatus in question is programmed in such a way, that if a person may have contravened s. 49(4) of the Act of 1961, then it must automatically produce, in a prescribed form two identical statements (the s. 17 (2) certificate) containing certain information. This information reflects the various steps, in the analytical process which the apparatus has performed. Purely for convenience these can be described as follows:-
- Mr. Gerard Hogan S.C. with Mr. Shane Murray B.L. appeared on behalf of the plaintiffs. The following submissions were made in support of the reliefs claimed.
- When one contrasts this scenario with what, up to 1999, had been the traditional way of dealing with a person suspected of having consumed an intoxicant, it is immediately obvious that the differences constitute a significant deterioration in an accused person's rights. Under the blood or urine system, the registered medical practitioner must divide the specimen given, into two parts, and place them in two sealed containers, each containing one part. The member concerned must then offer to the arrested person one of the sealed containers. That of course, presents to the individual, an opportunity of subsequently having his sample independently analysed and of comparing that result, with the result of the sample tested by the Medical Bureau of Road Safety. He would therefore, by that means, have been in a position to challenge the prosecution evidence if the circumstances so justified.
- In this case, notwithstanding:-
- In the plaintiffs' submission, it is important to remember that when dealing with specimens of breath, one is measuring in micrograms which are one millionth of a gram. In fact, almost the equivalent of trace form. The other product tested namely blood, is to a level of one hundred millilitres which is the equivalent of one tenth of a litre. Therefore, one is dealing with very small units indeed. The giving of a breath sample is nothing more than a snapshot, referable only to the instant at which it is given. It is unrepeatable and unquestionably transient in nature. Once the entire procedure is over, in approximately three minutes for each specimen, it is never possible thereafter to replicate the test or to reproduce an identical breath substance for further testing or verification. Given the absence of any facility to split a specimen of breath, which if available, would enable an accused person to retain a portion for subsequent use, this method of testing for alcohol concentration is fundamentally different to the method used when giving blood or urine. In the latter circumstance, the Oireachtas has acknowledged, by conferring a right on the detained person to take possession of one portion of the sample given, that such a safeguard is necessary in order to comply with fair procedures. Such procedures are singularly absent in circumstances when breath is required.
- The apparatus in use in this country, being essentially the Lion Intoxilyser, is not infallible, as is acknowledged by the statutory requirement of taking the lower of the two samples and by the administrative practice, which is not underpinned by statute, of reducing that reading by a further 17.5% only then does and arrive at the calculation used for the purposes of s. 49(4) of the Act. These measures would not be necessary if the Oireachtas was of the view that the readings from this machine were unfailingly accurate and beyond question. In addition, this point is illustrated by certain witnesses who would not be satisfied with the initiation of a prosecution based simply on one specimen, which logically they should be, if in fact the machine was error free. Even therefore, if the testing procedure was carried out in laboratory conditions, which it is not, and even if the machine was fully calibrated and its operating functions rigorously compliant with standard operating procedures, a person would be reasonably justified in retaining a doubt upon its reliability, and in particular its reliability to ground such a serious prosecution as a s. 49 charge. Therefore, some other and additional means of safeguarding an accused person's rights must be found.
- This is all the more important by reason of the pivotal part which the s. 17(2) certificate plays in the prosecution by virtue of s. 21(1) of the Act of 1994. Whilst this latter statutory provision does not confer on the certificate a "conclusiveness", nevertheless, its presumptive value cannot be understated and, it is suggested that, in the vast majority of cases, a combination of the certificate and the provisions of s. 21, makes a conviction virtually inevitable. Whilst therefore, the section does not fall foul of infringing the judicial power of a District Court judge when trying an accused person on a s. 49 charge, as was the situation in Maher v. The Attorney General and Murphy [1973] I.R. 140, the provision nonetheless, for practical purposes is so close to that effect that any suggested distinction is not meaningful. In reality the effect is conviction by printout, a phrase used by Geoghegan J. in Whelan v. Kirby, (Unreported, Supreme Court, 1st March, 2004.)
- Under s. 21(3) of the Road Traffic (Amendment) Act, 1978 the Medical Bureau for Road Safety, having received and analysed a specimen of urine or blood and having determined the concentration of alcohol within, is obliged to forward a completed certificate in prescribed form to the relevant gardaí, and to send a copy of that certificate to the person from when the specimen was taken. Alleging that he had never received a copy of such a certificate under this statutory provision, and despite having made repeated requests to be furnished with it, the applicant in The State (Walshe) v. Murphy and The Attorney General [1981] I.R. 275 was charged with an offence under s. 49 of the Act of 1961 and had to face his criminal trial without a copy of such certificate. Having been convicted he instituted Stateside proceedings against the first named respondent, who was the presiding District Court judge, and the Attorney General. Whilst the case is perhaps more noted for the successful challenge to the validity of the judge's original appointment, it is also significant for that part of the Divisional Court's judgment which appears under the heading of "natural justice" at p. 292 of the report.
- Finlay P., as he then was, giving the judgment of the court summarised the applicant's submission on this ground by saying:-
- Quite apart from the statutory obligations imposed by s. 21(3) of the (Amendment) Act, 1978, the learned judge was satisfied that:-
- What this judgment is used for, in support of the plaintiffs' claim, is what has been described as the very apt description by Finlay P., of a provision comparable to s. 21(1) of the Act of 1994 which dealt with the presumptive nature of the Bureau's certificate. It will be seen that the certificate, whilst not conclusive, was said to constitute "a very compulsive proof" in relation to the charge in question. Its wording, incidentally, is virtually identical to s. 21(1) of the Act of 1994. In addition, the furnishing of a copy certificate was crucial so that the accused person could decide whether or not to challenge the accuracy of the concentration specified in it. This could be done in normal circumstances as the accused person would have obtained a split portion of the sample furnished. With the retained portion, there was an opportunity to have it independently analysed and to compare the test results with those specified in the certificate. A decision in this regard to proceed or not could only be meaningfully made on receipt of the latter. In this way, such an accused would have a reasonable opportunity of defending himself. Accordingly, these extracts from the judgment in The State (Walshe) v. Murphy are highly supportive of the core point made on behalf of the plaintiffs in these cases. As it happened, since the specimen of Mr. Walshe had been taken in August, 1979 there was no way of knowing whether the retained sample was capable of accurate analysis in May, 1981; being the date presumably, upon which he was in a position to make a decision on whether or not to have it assessed. It was never, so far as I can gather, so tested. However, as appears from the general principles so enunciated, it is the opportunity which is crucial, and not the invoking of it.
- This failure to supply, it was claimed, in the circumstances of The State (Walshe) v. Murphy, nullified an important right which the accused person had, namely the right to have the split sample analysed if he so wished. This inability, on the facts of that case, constituted a breach of natural justice and as a result the District Court's conviction was set aside. Whilst not in any way taking from the relevance of this case I should point, as is clear from the passage quoted at para. 24 above, that the 1978 Act expressly gave to an accused person the rights mentioned. Therefore the court was dealing with a statutory basis which is different to that in these cases.
- The essential point emerging from The State (Walshe) v. Murphy centred on this right of an accused person to have a reasonable opportunity of defending himself. Though, in quite different circumstances, that important right also featured prominently in a series of cases which, loosely speaking, have been described as the 'failure to preserve' or the 'lost evidence' cases. In 1987, Lynch J. delivered judgment in Murphy v. D.P.P., [1989] 1 I.L.R.M. 71. Mr. Murphy, the applicant, was charged with a number of road traffic offences including the offence of driving a motor vehicle knowing it to have been stolen. Having been informed that the gardaí did not carry out any fingerprint examination of the vehicle, and that the prosecution case would depend on visual identification evidence only, the applicant's solicitor told Sergeant Kavanagh, the relevant member of the gardaí, of Mr. Murphy's wish to have his own expert examine the vehicle for forensic evidence. Despite being so appraised of this desire, the vehicle which had been under the control of the gardaí was removed with their permission from its place of storage by an insurance company, which in turn, had the vehicle scrapped. This meant that there was no possibility for such a fingerprint examination and none had been carried out by the gardaí. Lynch J., having held that in the circumstances this violated fair procedures went on to say at p. 76 of the report:-
- All of these relevant passages, as quoted, were referred to and approved by the Supreme Court in Bowes & McGrath v. D.P.P. (Unreported, Supreme Court, 6th February, 2003) cases which were decided after that court had also considered this type of situation in Braddish v. D.P.P. [2001] 3 IR 127 and Dunne v. D.P.P. [2002] 2 IR 305. Resting with Bowes v. D.P.P., in the context of available evidence which had been lost or not preserved, the situation is that there is a duty imposed upon the gardaí to preserve evidence so that an accused person may have a reasonable opportunity to rebut the case against him. This broad proposition is of course subject to a number of subsidiary rules but the essential point of the requirement remains, namely, the affording to an accused person of a reasonable opportunity of defending himself.
- These cases are not relied upon by the plaintiffs as part of any submission that the gardaí were in breach of some duty by not preserving the breath samples in question so as to permit a subsequent independent inspection of them. The point made is in a sense much broader. In the absence of some adequate means by which the accused persons in the present cases can meaningfully challenge a s. 17(2) reading, then by analogy with The State (Walshe) v. Murphy, Braddish v. D.P.P. and Bowes v. D.P.P., it is claimed that they have been denied the opportunity of reasonably defending themselves.
- In the neighbouring jurisdiction of England there were two cases referred to, the first of which dealt with the relevant statutory regime prior to 1988, and the second which I feel turns significantly on s. 8 of the Road Traffic Act, 1988. In Cracknell v. Willis (1988) 1 AC 450 the defendant motorist, having been arrested was required to provide a specimen of his breath into a Lion Intoximeter. This specimen produced a reading over twice the permitted maximum. Having failed or refused to provide a further sample he was subsequently charged with two offences under the Road Traffic Act, 1972, as amended in respect of one offence by the Transport Act, 1981. By way of case stated, the opinion of the higher courts was sought on two questions. The first, and only one of concern to us, was whether the magistrates on convicting the defendant "were correct" in following the case of Hughes v. McConnell [1986] 1 All E.R. 268. In so doing they prohibited the applicant from adducing evidence of the amount of alcohol which he had consumed on the day in question. This issue arose as the applicant wished to give evidence of his consumption of alcohol prior to his arrest in order to ground an attack on the reliability of the readings produced by the machine. In believing that they were bound by Hughes v. McConnell, the magistrates refused to permit this evidence which, if given, would have formed a submission on behalf of the accused person that, by reason of the limited amount of alcohol so consumed, the judges should have drawn an inference that the apparatus in question was malfunctioning. In the House of Lords, the opinion of Lord Griffiths was relied upon.
- From this judgment it would appear that during the earlier period of the Intoximeter's operation, the Home Office issued the police with a circular advising them that they should offer a motorist the option of providing a blood or urine sample even though the reading obtained from the machine exceeded the figure of 50 micrograms of alcohol per 100 ml of blood. This "concession" was purely administrative and was in addition to a statutory entitlement under s. 8(6) of the Act, which gave to an accused person the right to provide a blood and urine sample if the reading was between 35 - 50 ug/100ml. Apart from being a source for this information, the opinion of the Law Lord is much more readily recognised for his reference to "two bishops" which in fact has led to the Cracknell case being frequently referred to as the "two bishops" case.
- This reference was made in the context of his view, that in addition to evidence pointing to a direct challenge on the operational reliability of the machine, an accused could also offer indirect evidence from which, if they so wished, the magistrates could infer that the reading assigned to him demonstrated the machine's unreliability. It was to illustrate the importance of having such alternative evidence available that Lord Griffiths cited the following famous passage. At p. 467 he said:-
- The second English authority was Richardson v. Director of Public Prosecutions (2003) EWHC 359. In that case, having provided the required specimen of breath, which showed a level of 93 micrograms of alcohol per 100 ml of breath, the accused person asked permission to give a blood sample but that request was refused by the police officer. He was subsequently charged with the offence of having consumed such a quantity of alcohol that the proportion of it in his breath exceeded the prescribed limit contrary to s. 5(1)(a) of the Road Traffic Act, 1988 and Schedule 2 to the Road Traffic Offenders Act, 1988. He was duly convicted but at his request the magistrates stated a case for the opinion of the High Court. In his judgment, Stanley Burton J., referred to the relevant section, namely s. 8 of the Road Traffic Act, 1988, which provided that, if the specimen of breath with the lower proportion of alcohol, did not exceed 50 ug of alcohol per 100 ml of breath, then the person in question had the right to have that sample replaced by a specimen of either blood or urine as was provided for under s. 7(4) of the Act. There was, in the case of Mr. Richardson, by reason of the readings above mentioned, no such right to replace the breath sample. In dealing with this statutory position, in the circumstances herein described, the learned judge said, at para. 32, that:-
- Mr. Hogan S.C. respectfully disagrees with this conclusion of Stanley Burton J. In summary he states:-
- The next submission made on behalf of the plaintiffs was a claim that the relevant sections of the Act of 1994, which are impugned in these cases, constitute a disproportionate violation of their constitutional right to fair procedures. Heaney v. Ireland [1996] 1 I.R. 580 was referred to as was the case of D.K. v. Crowley [2002] 2 I.R. 744, from which extensive passages from the judgment of Keane C.J. were cited. From the principles so derived, it is asserted that whilst fair procedures may be circumscribed by legislation, such legislation must respect the principle of proportionality. That was not achieved in this case when one examines the practical consequences for an accused of the operation of ss. 13, 17 and 21 of the Act of 1994. This is particularly so where there are no means of independently testing or verifying the print out from either the Intoxilyzer or the Intoximeter. The absence of such means, with the resulting consequences, cannot be over emphasised. This matter is considered and commented upon by the Supreme Court in Whelan v. Kirby (Unreported, Supreme Court 1st March, 2004). In quashing a s. 49 conviction in circumstances where the applicants request to inspect the intoxilyzer apparatus was not properly entertained by the District Judge, Geoghegan J. said at pp. 25-27:-
- Finally, by agreement, the following information was given to the court on what the position was, in various parts of Australia and also in California and Colorado of the United States of America.
- Mr. Fechin McDonagh S.C., who appeared on behalf of the defendants with Mr. Luan O'Braonain B.L., made submissions on behalf of his clients. In the first instance, he dealt with the point raised but not vigorously pursued by the plaintiffs, to the effect that the deduction of 17.5% from the lower of the two readings for the purposes of the calculation required for s. 49(4) of the Act of 1961 lacked statutory effect. Section 17(1) of the Act of 1994 provides that the lower reading "shall be taken into account" for the purposes of the said s. 49(4) of the Act of 1961. This phrase "shall be taken into account", did not preclude the possibility that other readings, certainly those more favourable to the motorist, may also be relevant for the purposes of this said section. Accordingly, unless some additional ground of complaint can be identified, this point on its own is not sustainable, given the fact that the deduction of 17.5% can only be of benefit to an accused person, and cannot under any circumstances, render his position less advantageous.
- This issue was covered by the judgment of Carney J. in D.P.P. v. Curry [2002] 3 I.R. 131 at p. 137 where the learned judge said:-
- In addition, the prescribed form of a s. 17(2) certificate, which Mr. McDonagh correctly points out is referred to in the relevant subsection as a statement and not as a certificate, comes from the Road Traffic Act, 1994, (section 17) Regulations 1999 (S.I. No. 326 of 1999), which the Minister made pursuant to powers vested in him under s. 3 of the Act of 1994. The actual format of the certificate used in the case of each of the plaintiffs in this action follows the specified format for such a certificate. This, in the defendants' view, is adequate, there being no legal requirement to have regulations which set out the precise scientific method used by the machine for the purposes of issuing the s. 17(2) certificate. The judgment of O'Higgins J. in D.P.P. v. Syron [2001] 2 IR 105 was referred to.
- Having referred to the presumption of constitutionality which the Act of 1994 enjoys, the defendants went on to respond to a claim advanced in the pleadings, that both types of apparatus were "inherently liable to wide and significant deviations in the measurement of breath/alcohol levels, even within a very short period of time", and then dealt with what is perhaps the most significant ground of complaint, namely the absence of an independent sample. In respect of the former, it was said that in view of the evidence submitted this allegation was not, even remotely, sustainable, even by reference only to the experts called on behalf of the plaintiffs. It was said that no such conclusion could be arrived at by this court even from such evidence.
- Prior to the coming into operation of the Act of 1994, a person who was requested and who provided a specimen of blood or urine, was entitled to retain a portion of that sample and was also entitled to receive from the Motor Bureau of Road Safety, a copy of its analysis of that sample. Both of these rights are statute based. Therefore the real question in this case is confined to an argument that, in the absence of an entitlement to retain a portion of a breath specimen, the underlying statutory provisions so interfere with an accused person's entitlement to a trial in due course of law or to fair procedures, that the same are repugnant to the Constitution.
- As well as relying upon domestic authorities a number of decisions from the United States were also referred to. The first was California v. Trombetta (1984) 467 US 479. In that case the Supreme Court of the United States considered whether there was any constitutional requirement on the State to preserve samples of a person's breath which had been submitted to analysis by way of an Intoxilyzer test. This is of course for the purposes, if the circumstances so allowed, of forming the basis of a subsequent prosecution under the Californian Vehicle Code. Because of the importance which the defendants placed on the opinion of the court, delivered by Justice Marshall, it is necessary to recite the relevant portions of that judgment, though extensive these are. At p. 486 of the report Justice Marshall stated:-
- Having pointed out that there is no allegation in this case that breath samples are deliberately not retained so as to interfere with an accused person's right, the following passage from Justice Marshall's judgment dealing with the issue of "non-preservation of breath samples" was then referred to. This appears at p. 488 of the report:-
- In support of the view that in certain circumstances, case law from the United States can be of particular benefit to the Irish courts, the decision of Hardiman J. in Dunne v. Director of Public Prosecutions [2002] 2 IR 305 was referred. Dunne, it will be recalled is a case where the gardaí had failed to preserve the video recording of a robbery which in the circumstances ought to have been so preserved by them. A rather large passage, commencing at p. 325 of the report and continuing until p. 327, was cited. As were the concluding remarks of Mr. Justice Hardiman on that page, which were:
- In the passages relied upon, Hardiman J. referred to Arizona v. Youngblood [1988] 488 US 51. Counsel then opened that case as it was in his view "particularly instructive." In fact, it was the minority judgment of Blackmun J., (with whom Brennan and Marshall JJ. concurred), which was relied upon, as it was this view which previously had commended itself to Hardiman J. in Dunne v. D.P.P.. The majority of the court in Arizona held that in the absence of bad faith on the part of the police, a failure to preserve potentially useful evidence, did not constitute a denial of due process. In the dissenting opinion, Blackmun J. explained how in his view, the earlier decision in California v. Trombetta indicated that the absence "of bad faith" did not end the analysis, and that being so went on to consider whether the evidence in Arizona "was such that its destruction rendered (the) respondent's trial fundamentally unfair". At p. 67 of the report he continued:-
- Mr. McDonogh S.C. then urged the court that what he called the "test of constitutional materiality" should be applied in determining the instant proceedings. This test was adopted in Trombetta and endorsed by Blackmun J. in Arizona. It was according to his submission, given at least indirect support, from the comments made by Hardiman J., at p. 323 of the report, in Dunne v. D.P.P.. If such an approach should be adopted, then even in the absence of an independent sample, the rights of the plaintiffs in this case were adequately safeguarded. Whilst it must be emphasised, that the type of evidence which the Supreme Court concerned itself with in Braddish v. D.P.P., Dunne v. D.P.P. and Bowes v. D.P.P., was of a character materially different from that emerging via the operation of the Intoxilyzer/Intoximeter, nevertheless the underlying contention that the statutory scheme failed to seek out and preserve a specimen of breath, which could subsequently be used by an accused person, is in essence and to all intents and purposes, the same as the complaint made by the plaintiffs in California v. Trombetta.
- Turning to the broad issue of fair procedures, the defendants firstly point out that it is important to remember that an individual is never charged under s. 49 with having a specified concentration of alcohol in his breath, blood or urine. Rather, the offence alleges that within a specified period of driving, the accused had such a concentration of alcohol as "exceeded" the minimum permitted by law. That applies irrespective of the nature of the sample. Accordingly, it would be of no benefit to an accused person to prove for example, that an analysis by the Medical Bureau of Road Safety was incorrect in that instead of having a declared value of say 140 microgrammes it should in fact have been 100 microgrammes. Once a relevant reading is in excess of the permitted level, then that element of the offence, is from the prosecutions point of view, present. Cases such as Regina v. Coomaraswamy (1976) RPR 21, Thomas v. Henderson (1983) RPR 293 and Gordon v. Thorpe (1986) RTR were all referred to in this regard.
- The principle underlying these cases is reflected in the judgment of Costello J. in Hobbs v. Hurley (Unreported, High Court, Costello J. 10th June, 1980). The issue which the following passage from that judgment deals with, arose out of a submission that the certificate by the Medical Bureau of Road Safety was signed by one person only, whereas in fact, there were two analysis, each of which was carried out by different individuals. The validity of the certificate, in the absence of the signature of the second analyst was challenged. The learned judge dealt with this issue in the manner following:-
- As is evident from this extract, there were two separate analyses of the sample furnished in Hobbs v. Hurley. The resulting certificate from the M.B.R.S. did not cite either result but rather their mean, less 6%. It is claimed that this practice is very similar to that in existence when a specimen of breath is required. It is said that the true function of the Bureau in this context, is not to certify the exact level of alcohol but rather, (if of course the circumstances permit it) to produce a certificate or statement indicating the concentration levels above the permitted minimum threshold. In the case of blood or urine the Bureau is acutely conscious of the necessity for reliability and accuracy when utilising its analytical methods to this end. The machine in the present circumstances is programmed to perform in a similar way and to deliver similar results.
- The next matter dealt with by the defendants in their submissions, was the availability of certificate evidence under s. 17(2) and s. 21 of the Act of 1994. The Supreme Court's consideration of s. 63 of the Employment Equality Bill, 1996, was referred to. That decision of the courts is reported under the heading In Re The Employment Equality Bill, 1996 [1997] 2 IR 321.
- In conclusion, it is said that a person charged with an offence contrary to s. 49...4) of the Act of 1961, has the right to adduce evidence of the type referred to in the "two bishops" case; has the right to apply for an inspection of the apparatus as per the Supreme Court decision in Whelan v. Kirby; has the right to challenge the functioning accuracy of the Intoxilyzer/Intoximeter and furthermore may take such other steps as his lawyers may advise. The avenues open to such a person constitute in the defendants submission a reasonable opportunity of rebutting the evidence provided by ss. 17 and 21 of the Act of 1994. Accordingly, there is no disproportionate interference with a legal or constitutional right. In these circumstances, the relief sought should be declined.
- Because the parties had helpfully agreed on what might be described as the non-technical evidence, there was no requirement to call the plaintiffs or any of them. On their behalf, however, as appears from para. 10 above, two experts tendered evidence of a scientific nature. Because there were only two such witnesses it is, I think, convenient to deal with their evidence separately, though inevitably to some extent, their criticisms of the existing regime overlap.
- In the weeks leading up to this trial Dr. Deane visited both Pearse Street and Terenure garda stations where he observed the operational process of the Intoxilyser and the Intoximeter, in respect of which, for the purposes of these cases there is no relevant point of distinction. Accordingly any reference to one includes the other. He witnessed both machines and inspected the same. As a result of such visits, and by reason of his examination of the discovered documents, he was satisfied to offer to the court certain evidence of a critical nature, which evidence in summary form can be described as follows: at the commencement of his contribution in this court he pointed out that one was dealing with very minute particles; indeed he described micrograms as being the equivalent of trace elements, though scientists were also able to measure accurately to the nanogram and picogram levels. He instanced this by stating that a milligram was 1,000 of a gram whereas a microgram was 1,000,000 of a gram. It was therefore in his view of importance that this court should fully appreciate the tiny elements which this apparatus was dealing with.
- His first serious criticism was focussed on the question as to which one of any two results might be the accurate one. In the case, of say, Mr. Quinlan, whose breath specimen one gave a reading of 89 ug/100 ml and his second a reading of 83 ug/100 ml, he was unsure whether either was accurate, or both, or indeed neither accurate. He suggested that a third test should be carried out and if that was closer to 89 ug then, as a matter of probability that was the truer figure. On the other hand if it produced a reading of 82 ug then perhaps the lower reading of 83 ug was more accurate. In the latter situation he wondered whether one would then use 82 ug or 83 ug for the purposes of deducting from it, the 17.5% above mentioned. He was therefore attempting by this evidence to cast doubt on the machines ability to accurately record a suspect's breath alcohol concentration.
- His fears in this regard were not in my view well founded. In fact, they were formed on a basis which did not take into account the undoubted position that, with evidential breath testing, one is dealing with two different samples and not with a single sample. In the case of blood or urine there is but one sample, (though split into parts) and if the analytical results should vary above or below a certain percentage difference, then, a further test would undoubtedly be required. This is because one would expect a very close co-relationship between results of the same sample. However, the present situation is entirely different. Breath specimen one is completely separate from breath specimen two, even though both are given within a short period of time. For physiological, and I am sure, many other reasons, it is quite normal and to be expected that the level of alcohol concentration would differ from one specimen to the other. Such a difference is not in anyway indicative of apparatus unreliability. Indeed, if a third sample was carried out it is likely that its results would differ both from specimen one and from specimen two. As a result his point, which may be perfectly valid with regard to blood or urine, has no direct relevant bearing on breath analysis. To his credit however, when these matters were pointed out to him, he freely acknowledged that his initial views did not take cognisance of this significant distinction.
- In the same context evidence was given that when a breath specimen is exhaled into this apparatus, each filter, of which there are four with one blank, continuously assesses the content of the air within and does so some 40 times per second. As a result there are some 200 calculations made every second. The machine is programmed to recognise the distinction between mouth breath, breath in the upper respiratory tract and the breath from the deep lung. Whilst all of the air content is analysed, it is only the alveolar breath which is used for result purposes. What is used, is the mean of these said calculations and that gives rise to the ultimate specified levels.
- The second major criticism related to the purging elements of the cycle. Evidence was given that when the Medical Bureau of Road Safety (M.B.R.S.) inspects these machines every six months, it carries out a testing procedure which includes a test on the first element of the cycle, namely Step No. 1 (see para 16 above). This, it will be recalled is for the purposes of ensuring that there is no alcohol in the ambient air of the garda station in question. This bi-annual test is designed to trigger at a level of 8 ug/100 ml. The doctor therefore suggested that since this test would not pick up alcohol in the ambient air at a lesser concentration than 8 ug/100 ml, then it was possible that some micrograms, perhaps a significant number, could infiltrate a subjects specimen and thus give rise to a false additive result.
- The third criticism involved Step No. 2 (see para. 16) of the process, namely Simulator Check 1. For this part of the cycle the machine has a tolerance of plus or minus 3 from 35 ug, which is the known alcohol concentration of the injected gas. More accurately, the tolerance is between 32 and 37.9 ug. This witness suggested that if the seal in the gas container was somehow less than secure, then perhaps up to 2 ug of alcohol stained air, could remain in the chamber from this test. If that was possible it could as a result contaminate any of the breath specimens given by an arrested person. So, in his view if the person's true reading was say 35 ug and if there was a further 2 ug still in the system, then a false reading of 37 ug would result. The answer to this is at least two-fold. Firstly, following each simulator check there is a purging process whose tolerance level is 0.49 ug. Consequently, if the machine operated to the manufacturer's specification, any residual alcohol in excess of this would be picked up. The second explanation however is a little more damaging from this witness's point of view. Dr. Deane was satisfied that in the example given, the residual, say 2 ug of alcohol, would be increased, through simple addition, by the quantity of alcohol in the suspect's specimen. This addition he felt would inevitably be included in the result.
- His next concern was directed towards the 17.5% deduction, from the lower of the two readings, which leads to the establishment of the concentration level for the purposes of section 49(4) of the Act of 1961. This percentage deduction was in his opinion for what he called "determinative error" or machine error. It had three aspects to it. The first was what he described as the "maximum permissible error" which in this instance was plus or minus 3. The second was standard deviation, meaning the range of results which follow the testing of any particular value on multiple occasions. And the third was the tolerance of the gas used in the simulator check which he claimed was 2%, its equivalent being 0.7 ug. With regard to the maximum permissible error, he pointed out that when the machine was in calibration mode the error was indeed 3.0. That gave a percentage of 17.4% or 17.5%. However when the machine was in test mode it operated at 3, as it eliminates everything from the decimal point, unless and until another full unit of measurement is reached. So, in fact, in test mode he was of the opinion that there might be a tolerance level of anything up to 3.9 and not simply 3. That would inevitably affect the percentage figure. In addition the deduction of 17.5% did not cover an indeterminative error, an example of which might be the leaking gas above mentioned. Moreover, there was a third type of error, one known as gross error.
- He was not correct in postulating the possibility that the tolerance of the machine might in the instance given operate up to 3.9%. This is because, whilst in loose general conversation reference was made to a tolerance of plus or minus 3, there was however also evidence of an accurate and scientific nature, which stated that the true upper limit was not 3% but 2.9%. Consequently the entire basis of this supposition was not sound. In addition, I do not believe that there is any substance in Dr. Deane's claim that a greater percentage deduction should be allowed for, so as to incorporate either what he described as indeterminative error or gross error. The machine in its relevant analytical components, operates within certain tolerances and if any of the components which he referred to, exceeded their permitted limits, then the machine would automatically cease to function. Ultimately, having been shown how the 17.5% was calculated this witness essentially agreed that it was an appropriate deduction.
- The second and only other witness for the plaintiffs was Mr. Christopher Cuffe. As explained earlier this witness is a mechanical engineer, he has a Masters in Industrial Engineering from University College Dublin and a Post Graduate Certificate in Advanced Materials Science from the University of Surrey. He is a Chartered Engineer and a European Engineer. As part of his practice he has had some involvement in a testing capacity. He was, at one stage in charge of research and development for a scaffolding manufacturer and had direct responsibility for ensuring that the scaffolds were tested and the resulting documentation was in order, so that the necessary European approvals could be obtained and adhered to. In the construction industry he has been involved in testing on a regular basis, but in particular with fumes emanating from paints. Because of this particular background he was asked to become involved with "the breathalyser" and he has now been retained in over 40 cases. He has inspected about four machines over the past three years and is familiar with the Intoxilyzer and the Intoximeter. However he has neither qualification with or experience of either blood or breath alcohol analysis. Moreover he does not have, and does not profess to have, any real knowledge of the technology involved in this equipment and most certainly, on his own admission he is "definitely not an expert" in this field.
- In no particular order of priority I will firstly deal with a complaint of his, that on inspection he found certain components of the apparatus to be out of tolerance. He identified these as the motor speed, the A.G.C. voltage, the breath tube temperature and the flow off-set reading. Referring to Appendix F, which is a document dated 27th September, 1999, and is to be found in the Intoxilyzer discovery, he was asked about what effect if any for example "Clock Accuracy" would have, if out of tolerance, on the actual operation of this machine. He accepted that in all probability there would be no adverse affect. Likewise it was put to him that even if all of the above components, as identified by him, were out of tolerance, an identical result would follow. He could offer no comment on this. Not knowing how the machine truly operated, he was unaware, for example, of what the flow off-set reading was or how it might impact on the machine's ability to issue an accurate reading of a person's alcohol concentration in a breath specimen. As against this evidence Mr. Blyth, who is Head of Calibration at Lion, was empathic in his opinion that the deviations mentioned were entirely irrelevant for the purpose of machine accuracy. In such circumstances there cannot be any option for this court other than to accept the evidence of the latter and to reject that of the former.
- On one of his visits to Pearse Street and to Terenure garda stations, Mr. Cuffe took a small sip of vodka, swilled it within his mouth and then spat it out. He immediately thereafter used the machine. In Pearse Street readings of 16 and 13 and in Terenure readings of 13 and 9 were displayed. In neither situation did the accompanying graph drop to zero as he had expected. This graph, examples of which are to be found on pp. 131, 132 and 133 of the Intoxilyzer documentation, demonstrates by the type of curve produced, when the machine recognises mouth alcohol (if present) and when the deep lung breath has been exhaled. With mouth alcohol the graph shows a peak and then a dip. There is no such peak or drop in the absence of mouth alcohol. The witness's concern was that since the graph did not return to zero, and thus reflect the fact that he had emptied his mouth of vodka, there was a possibility that contrary to manufacturer's specification, mouth alcohol might infiltrate any alcohol in the deep lung breath and consequently might create an inaccurately high reading. His conclusion was that "there is definitely a significant potential that can't be ignored with regard to the possibility that mouth alcohol could affect a test on a subject".
- These views as expressed by Mr. Cuffe are not I believe correct. In the first instance he did not wait the 20 minutes which is now apparently routine. Secondly, the mere fact that he rinsed his mouth after spitting out the vodka could not have had the effect, as he thought it would have, of cleansing the inner mouth of all alcohol residue. There must still have been some remaining within the membranes of the mouth. Thirdly, every deep lung breath must pass through the mouth and consequently will carry with it into the machine, alcohol from the mouth. Fourthly, what he failed to recognise was the fact that the machine is not programmed to distinguish between alcohol purely from the mouth and alcohol within a deep lung breath, until the overall reading reaches 30 ug/100 ml or more. Immediately this threshold is reached, the apparatus is in a position to separate both types of alcohol and if mouth alcohol is present, it will send that message to the operator and therefore abort. Since the legal threshold is 35 ug/100 ml a person cannot be at risk by reason of the threshold just identified. Accordingly, I do not accept his evidence in this regard.
- In a similar context reference was made to the same Appendix of the document dated 27th September, 1999, which is above mentioned. The relevant passage referred to, reads "our attempt to assimilate mouth alcohol produced unexpected results. At times, mouth alcohol was not flagged and as a result printed out. In response, Lion point out that the instruments have passed the more scientific mouth alcohol simulation test devised by the Home Office. However it points to the need to observe a 20 minute wait period before a breath alcohol test". It is said by Mr. Cuffe that he cannot locate the assimilation test mentioned in that passage. It is an accepted fact that there is in existence a practice of waiting the 20 minutes in question before commencing the cycle and secondly, given the Bureau's approval of these machines, I cannot infer some major infirmity with regard to mouth alcohol simply because this witness cannot locate the test referred to. The unavailability of these test results to Mr. Cuffe, are in quite a different category to the documentation relative to the operational use of, and the testing and service of, such machines.
- This witness also alleges that by reason of the level at which the Medical Bureau of Road Safety tests those machines for ambient fail, there is a possibility that a suspect's specimen could be falsely inflated by up to 7 ug. This point echoes that raised by Dr. Deane and is in my view fully answered in the relevant passage dealing with the evidence of that witness: see para. 34 above.
- Mr. Cuffe stands by an allegation in the pleadings that the machines in question are inherently liable to wide and significant deviation. He referred to the ambient fail point as part of this argument. In addition, he considered and relied upon literature which showed that two tests, out of 58, involving the gas measurement were out of tolerance. Furthermore, when at Pearse Street he also observed a gas reading of 31 ug which was not within the acceptable level of minus 3 or plus 2.9, of 35 ug.
- In fairness to this witness I think it quite reasonable to say, though he himself may not entirely agree, that the major focus of his attention was truly documentary and procedural compliance. He spoke about machines being "type approved" at the manufacturers stage and to an original specification. He spoke of the necessity of complying with procedures when for example it is found that a component is out of tolerance. He gave, as an instance, the fact that in 2002 certain tolerance levels were changed in the Pearse Street instrument but that the Motor Bureau of Road Safety was not informed until some time in 2004. He was highly critical of this. The Bureau should have been immediately informed of the fact that these components were out of tolerance, of what adjustments were proposed to be made, of those that were in fact made, of the retesting procedure thereafter and of when, in the altered form the apparatus would recommence its work. In addition he pointed out that any entity which carries out testing must do so to the highest international standards including I.S.O. 17025 and that the laboratory in question must be accredited. He also made the complaint that the service/testing regime wasn't as rigorous as what it should be and that the Bureau was not competent to manage, what he described as its sub-contractor in this country.
- The testing regime which was described by Ms. Leavy in her evidence and which is hereinafter referred to in more detail, indicates that the duly appointed agent of Lion carries out an inspection annually on each machine in operation in this country. This is done in the nature of a service. This is not designed or carried out as a test. The testing of these machines is done by the Medical Bureau every six months. The Bureau is a laboratory duly accredited to carry out this testing not only in-house but also in each garda station where the machines are located. Ms. Leavy in her evidence fully describes the involvement of the Medical Bureau in this regard. It is sufficient at this juncture to say that the generalisation of Mr. Cuffe's complaints are in my view insufficient to constitute a challenge in any serious or substantial way to the adequacy of the existing testing regime or the type approval regime. In so saying I am not in any way to be taken as underestimating the importance of a complete and transparent paper trail but as with inspection this is a point that can be addressed by the court of trial. Ultimately, subject to two residual doubts, he accepted the accuracy of what the Bureau was doing, their results and the methodology adopted by them. His reservations concerned the ambient fail, which is dealt with above, and an allegation that the Bureau is incompetent in its dealings with the duly appointed agent of Lion in this country. Given the role allocated to this agent, which is not one of testing, I do not believe there is any substance in any of these complaints.
- Mr. Blyth has been Head of the Calibration Laboratory with Lion Intoxilysers for about 20 years as well as being Service Manager for most of that period. He has 23 years experience in evidential breath testing. The description of how this machine works, which is given at para. 16 above, is taken from the evidence of this witness. In addition, he informed the court that in the United Kingdom when dealing with breath testing machines, which for analytical purposes are identical to those in operation in this country, his company carries out a performance maintenance service or test every six months. There is apparently no equivalent body to the Motor Bureau of Road Safety in that jurisdiction. In Ireland, as is known, the Bureau carries out a testing procedure every six months with Quantum Scientific, the duly appointed agent of Lion Laboratories, doing an annual service. Given his experience, he was quite satisfied that by reason of the many diagnostic features incorporated within this machine, the same is incapable of malfunctioning without recognising it. If there should be a problem, which might affect any given reading, the apparatus will close down. On every occasion of use, it goes through a self test routine, for example, by checking the calibration through the gas simulator tests. This in his view is totally reliable. He would be quite satisfied with one test and thus with one reading, even in the face of tiered penalties. This is because in his opinion, all areas of uncertainty have been taken into account. He pointed out that the tolerance of minus 3 plus 2.9 is applicable for the gas check which has a known quantity of alcohol injected, namely 35 ug. For the ambient air test the tolerance is 0.49 and the machine will abort at 0.5. This within consecutive blank tests. The 15% breath difference in his opinion may not be related or entirely related to mouth alcohol. He is satisfied that all international standards have been complied with and he disagrees with the suggestion that in the case of micrograms one is dealing with trace elements.
- Every six months, as previously stated, the Medical Bureau carries out what he described as a calibration verification, which actually is a reset of the service lock-out as the machine has now been tested. As a result the service lock-out is overridden and the reset button activated for the following six months. At the end of a seventh month, if there had been no test within that period, the apparatus automatically closes down. He denied that there was in essence any substantial difference between a service and a service test other than through "the play with words". He was emphatically of the opinion that the A.G.C. voltage, the motor speed, the breath tube temperature and the flow offset, all of which, apparently, were found to be out of tolerance for a period of time, were entirely irrelevant to the operational or functional use of these instruments. These had no effect whatsoever in the accuracy of the resulting printout. Finally, as these machines were designed to operate within garda stations, it was entirely inappropriate to mount any criticism of such venues not having comparable laboratory conditions. Given the evidence of both Dr. Deane and Mr. Cuffe, and my conclusions thereon, and against the background of this witnesses' specific knowledge and experience, I am satisfied to accept, without any serious reservation, this man's evidence.
- The general manager of Intoximeters UK Limited, a Mr. Paul Cunliff, also gave evidence in relation to the single Intoximeter involved in this case. It is unnecessary I think, to dwell upon the evidence of this witness as the same was not significantly challenged. He confirmed that in his opinion one test and thus one result would be sufficient, as he was quite definite with regard to the accuracy of the conclusion. The deduction of 17.5% was appropriate, and as with the Intoxilyser this machine did not recognise mouth alcohol until the output reached the equivalent of approximately 30 ug. The position in the United Kingdom, where the legal limit is similar to Ireland is that with a reading of between 30 and 40 ug/100 ml, no prosecution as a matter of administrative practice is ever taken, and that, with any reading of between 40 and 50 ug, the option of a blood sample is available. There is, however, no deduction like or similar to the 17.5%, which is applied in this jurisdiction.
- Professor Jones from Sweden has a seriously impressive academic background in this specific area as well as having at least 20 years experience in a variety of most senior positions dealing with this topic. He has received many internationally recognised honours and awards. He informed the court that many countries have adopted a breath alcohol testing procedure for evidential purposes in the context of road traffic offences. He produced a table offering a comparison of the legal limits of blood and breath-alcohol concentration for driving in different countries, as well as examples of the instruments used for breath testing in such countries. Some, as in Sweden, have a level as low as 10 ug/100 ml whilst others, including Ireland and three or four others countries, are at the highest range of between 35 ug and 38 ug/100 ml. Being familiar with the practice in question he had no doubt but that, when the machine was functioning in accordance with specification, any reading obtained was accurate and precise. He was most impressed with the self checking device of the gas or simulator tests every time the apparatus was in use. If these checks were within range, then a breath specimen reading was, in his view, almost certainly accurate. The 15% breath difference was an important safeguard because if a second sample had a difference greater than this, then one would have a suspicion of some malfunction. The practice of waiting 20 minutes before commencing the cycle was important as any residual alcohol in the mucus membranes of the mouth, from for example a recent drink, would not affect the result after such period. In his opinion the deduction of 17.5% was generous. In the United Kingdom there was no such subtraction and in Sweden there was a straight 7 ug deduction which, at the lower limits gave a high percentage but at say a level of 70 ug amounted only to 10%. From his experience of making a direct comparison between breath and blood for alcohol concentration he was satisfied that, virtually always, breath understates the concentration when verified as against a blood sample taken at the same time. In the case for example of Mr. McGonnell who had a breath concentration of 36 ug, it was his opinion that if a sample of blood had been taken at the same time, it would have shown a concentration closer to 90 mg/100 ml. He confirmed that he would not be happy with a single test or a single reading. In his view the second specimen was very important for verification purposes. Finally, in direct evidence he said that there is a direct relationship between the legal limits applicable to blood/urine and those applying to breath.
- In cross examination he said that he had never heard the phrase "trace elements" used in this context. He did however confirm that, given his background as a chemist or toxicologist, his definite preference would be for a second test. The resulting difference between himself and Messrs Blyth and Cunliff in this regard probably stemmed from their different backgrounds. In his opinion both of the readings, with all plaintiffs, were accurate but he did say that a third test was a potential option. If an additional test was available, then whilst all are equally accurate, the best calculation of alcohol concentration would be the average of the three. Taking say Mr. Quinlan's readings of 89 ug and 83 ug, it was suggested that though within tolerance there was a significant variation between both. Certainly significant in the context of tiered penalties. In response the witness said that such marginal results will always occur with such a system. Some individual cases could be found and could be identified which give a reading, like that of Mr. McGonnell, which was but one ug above the legal limit. Given the fact that the lower reading is taken and then a deduction of 17.5% applied, he was satisfied that though close to the limit, the readings were accurate for their intended use. It was put to him that he could not have the same level of confidence in the accuracy of the machine at the higher readings. He did not agree. In his opinion the instruments were linear in nature. So, if these correctly functioned at 35 ug, then if one doubled the amount of alcohol one should get double the reading. He would, however, be surprised if there were no checks for linearity at the higher levels. He would expect those measurements to be ascertained. He acknowledged some individuals might wish to offer blood or urine but this was a matter for the legislature. Again, he acknowledged that with breath testing there was no opportunity for an independent test outside that performed by the apparatus itself. He was aware that different countries had somewhat different systems to deal with evidential breath – alcohol testing. Whilst Mr. McGonnell would have got the equivalent of a 20% deduction in Sweden, this as previously pointed out, is a consequence of any system with limits, as one will always find readings which are borderline either above or below the legal threshold. He indicated that the 17.5% deduction was to reflect various sources of uncertainty but that rightly so, it did not cater for the breath difference of 15% which was an entirely separate matter. He reiterated the importance of the gas check which, if any external problem arose would be detected by this self diagnostic feature.
- As with the previous witnesses called on behalf of the defendants, I am quite satisfied that the substance of the evidence given by Professor Jones remains unaffected by the challenge mounted against it. In essence, I feel that the views offered by him were not in anyway undermined.
- The last witness called was Ms. Leavy who has a B.Sc in Biochemistry from University College Galway and Masters in Instrumental Analysis from Dublin City University. She has been with the Medical Bureau of Road Safety since 1974 and presently holds the position of Chief Analyst with that Bureau. The Bureau is the body established by statue which, since 1968, has had the function of analysing blood and urine specimens for the purposes of the Road Traffic Acts. It is also the body charged with the responsibility of approving, supplying and testing instruments used in breath alcohol analysis. In approaching this task the Bureau took the view that any such instruments had to be approved by the Home Office in the United Kingdom in accordance with the 1994 type approval procedures, or had to be approved by other European Union countries to standards set by the International Organisation of Legal Metrology. The Bureau also specified a list of requirements which the manufacturer was obliged to comply with. The details of these requirements, including approval requirements, were made available in evidence without challenge. In addition, and prior to any approval, the Bureau tested the machines in question over many months in accordance with the quality framework requirements produced by the Home Office in consultation with the National Physics Laboratory and U.C.A.S. Accreditation in the United Kingdom. Both the Intoxilyser and the Intoximeter are, as we know designed and approved for use in the United Kingdom, and otherwise have met all international standards and all requirements of the Bureau.
- The Bureau, which is accredited to I.S.O. 17025 standard, is covered to carry out testing on these machines at garda stations. Such testing occurs every six months and during that process, it assesses clock accuracy, internal barometer accuracy, temperature of the gas cell, failure to return to zero, linearity and precision at the following levels: 0, 35, 44, 66, 200 ug/100 ml, correct functioning of the measurement cycle and interfering substances. Once a year there is an annual service by Quantum Scientific, the duly appointed agent of Lion Laboratory. Everything that is carried out by Quantum is likewise carried out by the Bureau twice a year. Immediately after this annual preventative maintenance, no machine is re-introduced into service until the Bureau has checked, examined and passed it. Some other countries, according to Ms. Leavy only service annually with the situation in the United Kingdom being explained by the fact that there is no independent testing body in that country and so the Home Office has to rely on the manufacturer for this purpose. During the course of the Bureau's testing, it carries out at least five if not ten tests whereas in the United Kingdom such an in-depth examination is not normal practice. The reference to the linearity and precision tests, at the different levels above mentioned, was, from the courts point of view quite important as the plaintiffs raised a doubt about the Bureau's practice of examining at these levels.
- The 17.5% deduction was designed to cover three variables or three different levels of tolerance. Firstly, the maximum permissible error, secondly, the precision of the instruments and thirdly, accuracy and precision of the testing equipment. The actual percentage was in the witness's opinion pitched at this level so as to err on the side of caution: that is to give the motorist every benefit. With that deduction the measurement of certainty was a factor of three. This should offer extra assurance to arrested persons as a normal certification process usually had a factor of only two. Ms. Leavy informed the court that breath testing procedures differ from country to country. Some make no deduction. Some arrive at a figure by adopting the average of two results and then deducting as in the Netherlands. In New South Wales there is one reading and no deduction but if the tested individual objects to the result, then arrangements must be made for obtaining a doctor, albeit as his own expense. In the State of Victoria there is one test result and one subtraction with the option of calling a doctor also being available. Again, whilst the Intoxilyser and the Intoximeter, in this country, self examine on two separate occasions through the gas tests in every cycle, the state of Victoria only carries out an annual check while New South Wales has a weekly check.
- At the garda station there is available, on request, the following documentation as provided by the Bureau.
- In cross examination by Mr. Hogan S.C., this witness denied that the purpose of splitting the blood or urine sample was to create a safeguard for the provider of that specimen. Rather, Ms. Leavy saw it as evidence that an arrested person could rely on the Bureau's analysis. There is no doubt but that with blood or urine any sample was capable of multiple testing. In the days prior to the "measurement of certainty", the practice grew up which remains, of the Bureau making a deduction of 6% from the result of a blood or urine sample, for the purpose of s. 49.
- In the case of a blood or urine sample it is the policy of the Bureau to test such a sample with two different machines and by two different analysts. If the reading is at the lower level, then a 4% spread between the results is acceptable. The mean of the figures is then taken as representing the s. 49 calculation. This is subject to what has been described as "critical specimens". These relate to borderline cases. In such circumstances the sample is analysed a third time. It is unquestionably the situation that such a process is not available with breath.
- As with Professor Jones, this witness would not be satisfied with one reading. Being a scientist, international best practice recommends two samples.
- Ms. Leavy confirmed that the 17.5% deduction was fundamentally based on the maximum permissible error of three. She was not familiar with the phrase "determinative error". The percentage deduction had "to do with systematic error, so far as what I call it, the precision is the standard deviations of relative standard deviations is to do with random error". She acknowledged that the breath difference of 15% was not within the deduction of 17.5%, but explained this by indicating that the 15% was reflective of the variability in the biological specimen given, and the percentage threshold existed because one had two such samples. This explanation is one which is undoubtedly correct and consequently it would not in my view be appropriate to incorporate in any way, the breath difference within the percentage deduction (of 17.5%) or whatever that might be.
- She explained the purpose of testing, "the ambient fail", at 8 ug/100 ml. This came from the quality framework document above mentioned. The entire rationale behind the test was to ensure that the machine recognised an ambient fail. It was not the intention of the test to try and find the limit of that fail. Any suggestion that a volume of alcohol contaminated air could permeate, up to say 7 ug, the breath or blank elements of the cycle, is entirely incorrect. To so suggest was to fail to appreciate that one is referring to two different tests. As Mr. Blyth pointed out the machine will detect an ambient fail at 0.49 ug. Consequently, in the court's opinion, there is no substance in this point of criticism as advanced on behalf of the plaintiffs.
- The machine, according to Ms. Leavy, operates with precision and linearity. The appropriate test is performed every six months at the various levels mentioned above and this confirms the linearity of the apparatus. There is no reason to suggest otherwise. The machine operates the Beer's Law and according to her evidence one expects and one gets a linear response.
- Finally, it was put to her that in contrast with blood or urine, it would be virtually impossible for somebody like Mr. McGonnell to effectively defend himself against a section 17(2) certificate. Whilst not being in a position to comment legally on the question, she was of the opinion, that given the safeguards including the self diagnostic tools within the machine, the disregarding of the higher concentration (as per section 17(1)) and in light of the 17.5% deduction, Mr McGonnell, though only by 1 ug, was in fact over the limit. She was satisfied that the apparatus was accurate, reliable and precise.
- In my opinion as with the other witnesses called on behalf of the defendants, I am I believe, almost forced to accept without any reservation, the substance and essence of the evidence given by this witness. I believe that, overall, the defence evidence was particularly strong and that the contrary offered on behalf of the plaintiffs failed to have any significant impact on the core basis of that evidence. Accordingly, this conclusion means that in my opinion the plaintiffs have failed to demonstrate that the apparatus in question is in any way flawed or incapable of complying with design standards. Accordingly, I believe that, in the light of the evidence as tendered, in this particular case, I can only conclude that the results of both specimen one and specimen two, of all the plaintiffs, are an accurate and reliable reflection of the level of concentration of alcohol in each person's breath at the time when the samples were given. I cannot, I feel, come to any other factual conclusion. Consequently, the legal challenge mounted on behalf of the plaintiffs must be considered in this light.
- Under the statutory regime in question, an arrested person has no choice as to the form of substance which he provides for the purpose of alcohol analysis. The decision as to whether that should be breath or blood is entirely that of the Garda. If, in his absolute discretion, he should specify breath, then, under pain of criminal sanction, the motorist must comply. At no stage of the process, irrespective of circumstances, including positive breath tests to any level, can the person involved insist upon a blood sample either to stand side by side with, or to replace, a breath specimen. The discretion which exists vests solely in the member concerned. See s. 13(1) of the 1994 Act. It is to be noted that this section provides no assistance whatsoever to the Gardaí as to when, or in what circumstances, this discretion might be exercised one way as against another way.
- From the evidence above outlined, it is quite clear that, at least for the present, the equipment under scrutiny in these cases is not capable of splitting a sample of breath, and, accordingly, the arrested person cannot be given any part or portion of either specimen which he has exhaled into the machine. In not having any such portion available, it is evident that he cannot subsequently have it tested or analysed, or even have the opportunity of so doing.
- In addition, the specimens, which are a snapshot of a person's breath, cannot be preserved. Once the machine has analysed the samples and produced its programme calculations, the specimens are lost. They are, for all time thereafter irretrievable. Moreover, there is no purpose in trying to repeat the process after one is discharged from a garda station, as any prosecution, if there should be one, will be based solely on the samples previously given at that moment in time.
- It is therefore abundantly clear that when the preferred method of testing is breath and breath only, the person in question is in a significantly different position from an individual who has been requested to give blood. Whether the sample should be blood or urine is immaterial in this context. Such a person has an opportunity of having a portion of a single specimen independently assessed if he so wishes. That portion must have the same properties as the retained portion, which the Medical Bureau has analysed. It is entirely irrelevant whether he should avail of his entitlement or not, or whether, if analysed, the results should be corroborative of guilt. It is the opportunity which is critical to fair procedures and constitutional justice.
- In broadly similar circumstances each of the persons last mentioned, will receive the results of the sample whether that should be breath or blood/urine. In the former case the readings are contained in the "s. 17(2) certificate". In the latter this is achieved by the Bureau being obliged to forward to the motorist, a copy of a completed certificate in prescribed form, showing its analytical results of what has been submitted to it. See s. 19(3) of the 1994 Act. Again the legal effect of the
- As a result there is no doubt but that in both cases such certificates constitute what Finlay P. described in the State (Walshe) supra, when dealing with the 1978 Act, as a "vital and, in many ways, a very compulsive proof on a charge of this description". The effect of the s. 17(2) certificate, when read in conjunction with s. 21(1) of the 1994 Act, was also commented upon by the Supreme Court in Whelan v. Kirby & Anor, unreported, 1/3/2004, whose unanimous judgment on the details of the case, was delivered by Geoghegan J. In that case, which was one of several in which a similar point was raised, the applicant sought an order from the District Court granting him permission to inspect, prior to his trial on charges under s. 49(4) of the 1961 Act as inserted by s. 10 of the 1994 Act, the Intoximeter machine which had been used in his case. Having refused his application, the learned District Judge proceeded to hear the substantive matter and to convict Mr. Whelan. On appeal from the High Court's refusal to grant judicial review, the Supreme Court, for the reasons set out in its said judgment, came to the conclusion that the learned Judge failed to properly entertain the application before him, and consequently, constitutional fairness of procedure had not been adhered to.
- In the course of his judgment, however, Geoghegan J. made certain observations which are relied upon by the plaintiffs in this case. At p. 8 of the copy submitted, he said "I am satisfied that the applicant had an arguable case that an inspection was reasonable given the relative novelty of the machine in particular and the fact that for all practical purposes he could be convicted on the say so of a print out … ". On the same page the learned judge continued. "It can be argued with some validity that apart from cases with very unusual facts the presumptions arising from the certificate in the Intoximeter cases are for all practical purposes irrebutable notwithstanding the statutory provision to the contrary …". Though obiter, it is strongly urged that these comments, relating to the evidential use of the "s. 17(2) certificate", demonstrate the virtual impossibility of an accused person being able to properly defend himself, when as unlike a blood/urine situation, he has no means of subsequently verifying the content of the said printout.
- In the case of blood, the practice of the Medical Bureau has always been to test the specimen at least twice and to do so through two different analysts and with two different machines. If the mean of these results show a case to be critical, then a third test is preformed. A tolerance of about 4% is acceptable at the lower level and 6% at the higher levels. Of course, as previously stated, this process cannot, by its very nature, apply to a breath specimen.
- Consequently, there can be no doubt but that from a defence opportunity point of view, an accused person who has been obliged to give breath is in a different position facing trial than a person who has been requested to give blood or who opts instead for urine. Many would say that those accused persons in the former category are not only in a different position, but are also in a much less favourable one than the latter group.
- The question, in the circumstances outlined above however, is whether the plaintiffs, as accused persons facing criminal charges, are being deprived of fair procedures or are in danger of having a trial which might violate Article 38.1 of the Constitution. In essence the argument, though not confined or limited to this point, is whether such individuals are being deprived of a reasonable opportunity of defending themselves, given the background circumstances previously described. From a factual point of view, it is submitted that whilst a third test may help in some cases, the reality of the matter is that the only way in which the constitutional rights of the plaintiffs can be upheld, is, if each of them has a right, enforceable by law, to insist upon offering a blood/urine sample to replace the breath specimen, when the adduced reading shows a concentration in excess of 35 ug/100 ml. No distinction, it is claimed, can be made in this regard between any of the plaintiffs given the tiered penalty system in operation under the 1994 Act.
- That there exists in our administrative and constitutional framework, a safeguard for an accused person to the effect that he must have a reasonable opportunity of defending himself against a criminal charge, is, in my opinion, beyond question. It is one of several rights constituting fair procedures and is also found within Article 38(1) of the Constitution. Several examples of its application are to be found in many reported cases. One such, is the State (Walshe), supra, which is a good illustration of the principle working in practice and is very much in an area directly relevant to this case. In one aspect of its decision, the High court set aside the District Court's conviction on the basis that it could not be satisfied that a sample of urine taken in August 1979 was capable of probative analysis in May 1981, which was the earliest date upon which it could be said that the complainant was obliged to consider whether, so as to properly defend himself, he ought to have had that sample analysed. As the intervening delay resulted from a breach of fair procedures, in that the prosecuting authorities failed or refused to supply a copy of the Bureau's certificate to the accused person, his conviction on that ground alone could not stand.
- The lost evidence cases, or the failure to preserve cases, which are referred to at paras. 28 and 29 above, include, Murphy v. DPP [1989] I.LR.M. 71, Braddish v. DPP [2001] 3 I.R.127 and Dunne v. DPP [2002] 2 IR 305. The essence of the judgment in Murphy is, I think in a passage which appears at p. 76 of the report, where Lynch J. said "the authorities established that evidence relevant to guilt or innocence must, so far as is necessary and practicable be kept until the conclusion of the trial. These authorities also apply to the preservation of articles which may give rise to the reasonable possibility of securing relevant evidence." This summary of the relevant principles has been cited with approval in the later cases above mentioned as well as by Hardiman J. in his judgment in Bowes & McGrath v. DPP (Unreported Supreme Court 6th February, 2003. This line of authority, however, including the duty of the Gardaí identified in Dunne, (as subsequently explained in Bowes), is not relied upon in the present cases, to ground any submission that the breath specimens should have been preserved and thus should have been available, in whatever form, at the s. 49 hearings. Rather, as previously pointed out, the direct relevance of such cases is that they underpin the conclusion reached by Lynch J. in Murphy, which was that "the applicant's opportunities of defending his case, have been materially affected to his detriment". Given this, and in light of my acceptance of the unquestionable right of an accused person of having a reasonable opportunity of meeting the case against him, I don't believe that these decisions otherwise add significantly to the precise issue arising in the present cases. In addition, there is a further point of significant distinction which is that not one of these such judgments was dealing with a statutory scheme, and accordingly what was established or re-asserted was done so by way of common law jurisprudence. I, therefore, don't believe that, save in the limited manner referred to, these cases are of any great assistance to the issues which must be determined in the instant proceedings.
- In addition to relying on the cases last mentioned, the plaintiffs also cited Richardson v. DPP [2003] EWHC 359, a decision which I will revert to later in this judgment, and Cracknell v. Willis [1988] 1 A.C. 450. As the facts in Cracknell are set out at para. 31 above, it is unnecessary to further repeat them here, in any detail. It is sufficient to say that in my view, the true issue facing the House of Lords in that case, was in reality one of statutory interpretation. Was s. 10(2) of the Road Traffic Act 1972, as amended, to be read as limiting the type of evidence which an accused person could tender, in his challenge to a print-out from an Intoximeter, when charged with a driving offence under the Road Traffic Act? As Lord Griffiths said, such a conclusion would require the most clear and unequivocal language given what was at issue for the accused person. He also said " … we all know that no machine is infallible", a comment which, with respect, I accept that no reasonable person could seriously take issue with. However, such a remark is significantly different from any suggestion, which could only be based on sustainable evidence, that such a machine is incapable of accurate breath alcohol reading when functioning according to manufacturers specifications. The learned Law Lord did not expressly, or by implication, so say.
- Finally, with regard to Cracknell, I would be greatly surprised if in this jurisdiction, any objection could be taken or would be upheld to the two bishops being called to give evidence, if their intended contribution was relevant, as an accused person, in my opinion, would be most entitled to rebut the presumption of the s. 17(2) certificate, if he could do so. Subject to relevance and admissibility, I cannot see any statutory prohibition as to the scope of any such replying evidence.
- There is no doubt but that Mr. Hogan S.C. is correct when he submits that if the statutory provisions in question constitute a disproportionate or unnecessary deprivation of, or limitation on the plaintiffs right, to fair procedures, then such provisions cannot stand. Heaney v. Ireland [1996] 1 I.R. 580 and D.K. v. Crowley [2002] 2 I.R. 744 were cited in support. Whilst the proportionality principle is an invaluable tool in testing constitutional limits, it must be remembered, however, that every case must be judged in accordance with its own circumstances, which inevitably involves a consideration of the aims and objectives to be pursed and the legislative means adopted to achieve these results. A good example is indeed Crowley's case, where the presence of a rather straightforward intervening step might have saved the declaration of incompatibility which issued in that case.
- As one is dealing with a domestic legislative regime, it is instructive, but in my view no more than that, to have information about similar systems which exist in other countries. From the table outlined at para. 37 above, it is clear however that there is no broad European, or if one could so describe it, common law consensus, as to the manner in which an individual's rights may be safeguarded whilst, at the same time, permitting the operation of a breath-alcohol testing system. There would appear to be variations, indeed some quite substantial, between virtually every different jurisdiction where such a system exists. These provisions however, it must be remembered, are the expression of sovereign governments and accordingly nothing conclusive in my view, can result from any attempted transposition of one system into the territory of another.
- The actual mechanism which operates, under the relevant provisions of the 1994 Act, or at least a particular aspect of it, has already been the subject matter of a High Court decision in DPP v. Curry, [2002] 3 I.R. 131. In that case three questions were posed for the consideration of Carney J. The first, and the only relevant one for the purposes of the instant cases, reads "(1) is it legally permissible for the prosecutor (whether by himself, his servants or agents) to program and operate the Intoximeter E.C./I.R. so as to deduct 17% from two co-equal readings, or to deduct 17% from the lower of the two readings, for the purposes of a criminal prosecution pursuant to s. 17 of the Road Traffic Act, 1994?" This issue arose in the context of s. 17(1) of the 1994 Act, which provides that the specimen with the lower concentration of alcohol "shall be taken into account" for the purposes of a s. 49(4) prosecution. As the practice of making a percentage deduction from this figure is administratively based only, it was suggested that any prosecution based on readings which included this deduction, were without statutory foundation and therefore had to fail. In giving his opinion Carney J. said "I accept the submission of counsel for the prosecutor that there was no third specimen or third reading. Two specimens were provided in accordance with the Road Traffic Act, 1994. The Intoximeter used the lower of the two as a basis for the figure of 89 micrograms that it arrived at. Section 17(1) provides that where, as here, the apparatus determines that each specimen has a different concentration of alcohol, the specimen with the lower concentration of alcohol is to be taken into account for the purposes of s. 49(4) and the other specimen is to be disregarded. The italicised text does not exclude the possibility that the concentration of alcohol in the breath for the purposes of that provision could be less than the actual reading of alcohol in the breath recorded by the Intoximeter. The calculation affected by the Intoximeter has the effect of providing a margin of error for the benefit of the accused. Whilst it may be the case that the prosecutor is not obliged to provide for such a margin, there is nothing to indicate that the fact of its provision is in anyway unlawful. The deduction is incapable of bringing about the conviction of an innocent person. The consequences of the deduction is that persons who might otherwise be deemed to have breached ss. 49(4) or s. 50(4) of the Road Traffic Act 1961, may not be convicted of such a charge. The deduction procedure only operates in favour of an accused. In the instant case the accused's concentration of alcohol was too high for her to benefit from the deduction. In the premises the first question is answered in the affirmative."
- Mr. McDonagh, S.C., also placed considerable reliance on the opinion of the United States Supreme Court in California v. Trombetta (1984) 467 U.S. 479 and in particular on the extensive passages which are referred to at para. 43 above. The core point of that court's decision was addressed to the question of "the government's duty to take affirmative steps to preserve evidence on behalf of criminal defendants". See p. 486 of the report. Or more accurately, whether the due process clause of the Fourteenth amendment was breached by the State's failure, acting through its agents, to preserve breath samples exhaled by accused persons into an Intoxilyzer machine, so that the same could be subsequently made available to both the persons involved and to the court of trial, - this when dealing with the resulting charges of driving while intoxicated. Such samples were not retained, though this was technically possible, not because of any bad faith, lack of candour, or other improper motive, but instead had been disposed of by police officers who were acting "in good faith and in accord with their normal practice". Whilst the judgment of the court dealt with many points, that portion of it which conferred constitutional probity on the impugned practice was most heavily relied upon. In addition Justice Marshall, who delivered the opinion of the court and who expressed some quite positive views on the accuracy of the Intoxilyzer, said that an accused person's fundamental right to "be afforded a meaningful opportunity to present a complete defence" was not abrogated by the State's failure which was under scrutiny in that case. Although, of course not binding and though the evidence with regard to the machine is limited to that which appears in the report, nevertheless, I believe that the defendants were well justified in relying upon this decision, as demonstrating by way of close analogy, that, subject to this court's finding on the evidential side, the use solely of an Intoxilyzer for the purposes of s. 49(4) may not be unconstitutional.
- The second US case cited was Arizona v. Youngblood, (1988), 488 U.S. 51, in respect of which the relevant extracts relied upon are set forth at para. 46 above. This case concerned a set of circumstances which were entirely different from those which surrounded Trombetta and accordingly I am not sure that any analysis of either the court's opinion or the dissenting judgment of Blackmun J. (with whom Brennan and Marhsall JJ. concurred) would enhance or indeed detract from the opinion of Marshall J. in Trombetta. In addition whilst Youngblood, though not Trombetta (because of relevance), has been considered by Hardiman J. in Dunne v. DPP [2002] 2 IR 305 at 325/327 (who preferred the dissenting opinion), a concluded view of the Supreme Court on that case must be awaited. Accordingly, I don't believe that any great reliance ought to be placed on Youngblood though it should be noted, that despite the minority's criticism of Trombetta, the same did not impeach the opinion of Justice Marshall as he spoke of the constitutional position of an accused person in the context of breath/alcohol specimens.
- Could I now revert to Richardson v. DPP [2003] EWHC 359. See para. 34 above. It will be recalled that Mr. Richardson was prosecuted for driving a motor vehicle where the Intoximeter showed a reading of 93 ug/ 100 ml at the relevant time. He had no right to have a blood sample to replace his breath specimen as s. 8(2) of the Road Traffic Act, 1988, permitted this step only when a person's lower reading did not exceed 50 ug/100 ml. He claimed that this lack of option in his case, prevented him from having "adequate facilities" for the preparation of his defence, as he is entitled to, by virtue of Article 6(3) of the European Convention on Human Rights. In the course of argument reference was made to the New Zealand decision of R. v. Donaldson, (1995) 3 NLZR 641, which case had to consider a provision in the New Zealand Bill of Rights Act, 1990 which in the court's view was for all material purposes identical to the relevant portion of Article 6 of the Convention. Though Stanley Burton J., was thus considering a constitutional and legal framework different to that which applies in the instant proceedings, nevertheless I would agree with many of his observations, which in my view have a direct relevance to the present cases. The learned judge pointed out that the absence of any right to opt for a blood sample, where the reading was in excess of 50 ug/100 ml, was the reflective decision of Parliament, which evidently took the view that in such circumstances "there was no reasonable requirement for some other form of sample". Secondly as with Article 6(3) of the Convention, the entitlement to fair procedures in this jurisdiction, does not include, in my view, any absolute right to "defence facilities". What must be available need not be perfect but must be fair, adequate and reasonable. If such are found to exist, then the relevant provisions are constitutional compliant. Accordingly he held that Parliament in England was entitled to ordain as it had. Likewise of course the Oireachtas in this jurisdiction, is entitled subject to constitutionally justice and fair procedures to legislate for intoxicated drivers.
- In deciding whether the plaintiffs rights have been infringed, I must as previously stated, consider the entire circumstances of the cases. I must therefore be conscious of the fact that the system in existence is a reflection of the will of the Oireachtas, which body is charged with the social responsibility of having in place an effective regime to deal with the undoubted evil of driving whilst over the permitted level. Whilst there is no question of this court applying any margin of appreciation, as was appropriate in Richardson, nevertheless it is important to emphasise that it is no part of the judicial function, to create or establish its own system of dealing with this problem, no matter how one may think that a further safeguard in a particular direction may be desirable. There was of course no legal impediment in the Oireachtas in providing for the option of giving blood or urine in all or in certain given circumstances, if it so desires, but evidently it chose not to do so. The jurisdiction vested in me however is not to decide on what is absent, but rather to consider what is in place and decide the challenge accordingly. In so saying I am not in any way suggesting that a comparison with blood or urine is anything other than highly relevant but the primary focus of the adjudication must be on the impugned sections.
- In my opinion the overall system above described does not infringe any constitutional or legal rights of the plaintiffs. In arriving at this conclusion I am of the view that the following are an adequate representation of, and afford reasonable protection for, the rights of such plaintiffs. These are:-
- In addition to the above there is one further safeguard which I consider of particular relevance. It is the entitlement of an accused person to seek inspection rights of any machine used to provide a s. 17(2) certificate in respect of him. Given not only the legal force but also the practical consequences of the presumption contained in s. 21(1) of the 1994 Act, it is in my view an important assurance for an accused person to know of his right to have access to a judicial authority for the purposes of seeking inspection facilities in respect of any given machine. When so deciding, the court in question must of course comply with constitutional justice and fair procedures on any such application so made, as it must on the hearing of the section 49 charge itself. In both instances it may vindicate such rights of the defendant in the most appropriate manner available. These observations equally apply to any application in respect of documentation.
- In addition of course all to the other requirements to ground a successful conviction must be put in place by the prosecution.
- In conclusion, whilst noting that the Act of 1994 carries with it the presumption of constitutionality it is my considered opinion that there is no real prospect of an injustice or of an unfair trial in respect of the charges still pending against the plaintiffs.
- For the reasons above mentioned I will dismiss these claims.
THE HIGH COURT
[2004] IEHC 312
[2002 6524P]
BETWEEN
ASHLEY McGONNELL
PLAINTIFF
AND
THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS
DEFENDANTS
AND
THE HIGH COURT
[2002 5511P]
BETWEEN
OLIVER QUINLAN
PLAINTIFF
AND
THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS
DEFENDANTS
AND
THE HIGH COURT
[2002 1611P]
BETWEEN
JOHN PURCELL
PLAINTIFF
AND
THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS
DEFENDANTS
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 16th day of September 2004.
Background:
(i) A declaration that the purported calculation of concentration of alcohol contained in the purported s. 17 statement of the 27th January, 2001 lacks statutory foundation and is invalid.
(ii) A declaration that ss. 13, 17 and 21 of the Road Traffic Act, 1994 are contrary to the provisions of Article 38.1 and Article 40.3 of the Constitution.
(iii) Further and other reliefs
(vi) Costs
Statutory Provisions:
A. "13.-(1) Where a person is arrested under section 49 (8) or 50 (10) of the Principal Act or section 12 (3), or where a person is arrested under section 53 (6), 106 (3A) or 112 (6) of the Principal Act and a member of the Garda Síochána is of opinion that the person has consumed an intoxicant, a member of the Garda Síochána may, at a Garda Síochána station, at his discretion, do either or both of the following-
(a) require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his breath and may indicate the manner in which he is to comply with the requirement,
(b) require the person either-
(i) to permit a designated doctor to take from the person a specimen of his blood, or
(ii) at the option of the person, to provide for the designated doctor a specimen of his urine,
and if the doctor states in writing that he is unwilling, on medical grounds, to take from the person or be provided by him with the specimen to which the requirement in either of the foregoing subparagraphs related, the member may take a requirement of the person under this paragraph in relation to the specimen other than that to which the first requirement related.
(2) Subject to section 23, a person who refuses or fails to comply forthwith with a requirement under subsection (1)(a) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding [€2,500] or to imprisonment for a term not exceeding 6 months or to both.
(3) Subject to section 23, a person who, following a requirement under subsection (1)(b)-
(a) refuses or fails to comply with the requirement, or
(b) refuses or fails to comply with a requirement of a designated doctor in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding [€2,500] or to imprisonment for a term not exceeding 6 months or to both.
(4) In a prosecution for an offence under this Part or under section 49 or 50 of the principal Act it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána for the purpose of enabling a person to provide 2 specimens of breath pursuant to this section is an apparatus for determining the concentration of alcohol in the breath.
(5) Section 1 (1) of the Probation of Offenders Act, 1997, shall not apply to an offence under this section."
B. "17.-(1) Where, consequent on a requirement under section 13(1)(a) of him, a person provides 2 specimens of his breath and the apparatus referred to in that section determines the concentration of alcohol in each specimen-
(a) in case the apparatus determines that each specimen has the same concentration of alcohol, either specimen, and
(b) in case the apparatus determines that each specimen has a different concentration of alcohol, the specimen with the lower concentration of alcohol,
shall be taken into account for the purposes of sections 49 (4) and 50 (4) of the principal Act and the other specimen shall be disregarded.
(2) Where the apparatus referred to in section 13 (1) determines that in respect of the specimen of breath to be taken into account as aforesaid the person may have contravened section 49 (4) or 50 (4) of the Principal Act, he shall be supplied forthwith by a member of the Garda Síochána with 2 identical statements, automatically produced by the said apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in the said specimen determined by the said apparatus.
(3) On receipt of the statements aforesaid, the person shall on being requested so to do by the member aforesaid-
(a) forthwith acknowledge such receipt by placing his signature on each statement, and
(b) thereupon return either of the statements to the member.
(4) A person who refuses or fails to comply with subsection (3) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding [€1,500] or to imprisonment for a term not exceeding 3 months or to both.
(5) Section 21 (1) shall apply to a statement under this section as respects which there has been a failure to comply with subsection (3) (a) as it applies to a duly completed statement under this section".
C. "21.-(1) A duly completed statement purporting to have been supplied under section 17 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts, 1961 to 1994, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the member of the Garda Síochána concerned with the requirements imposed on him by or under this Part prior to and in connection with the supply by him pursuant to section 17 (2) of such statement.
(2) …
(3) …
(4) …
(5) …"
"18-(1) Where under this Part a designed doctor has taken a specimen of blood from a person or has been provided by the person with a specimen of his urine the doctor shall divide the specimen into two parts, place each part in a container which he shall forthwith seal and complete the form prescribed for the purposes of this section.
(2) where a specimen of blood or urine of a person has been divided in two parts pursuant to subsection (1) a member of an Garda Síochána shall offer to the person one of the sealed containers together with a statement in writing indicating that he may retain either of the above containers.
(3) …
(4) …"
The above procedure becomes relevant by way of demonstrating the contrasting position of an accused person who is permitted to give a breath sample only and a person who has been allowed to offer blood or urine.
As is therefore immediately evident the actual level of alcohol concentration on which a person is convicted is highly material to the period of disqualification in respect of which the judiciary has no discretion.
Particulars furnished:
(a) That the wide and significant deviations in the measurements of the breath alcohol obtained from the Intoximeter EC/IR apparatus, result from a variety of factors including the design of the apparatus itself; testing and service procedures associated with the apparatus; the manner in which the apparatus is maintained; calibration procedures; commissioning procedures and laboratory procedures and the manner in which the apparatus is maintained in practice at the garda stations,
(b) That since the apparatus is measuring in micrograms, the extent of potential deviations, measuring such tiny quantities is so great as to be virtually limitless,
(c) That since the arrested person is denied the possibility of an independent sample which he can have separately and independently tested, he has no effective means by which the accuracy of the readings can be tested or challenged, and as a result must rely upon the inherent defects in the apparatus so as to demonstrate that the readings are not or may not be accurate.
These said particulars, which should be taken as covering both the Lion Intoxilyser 6000 IRL and the Intoximeter EC/IR, were elaborated upon by the oral evidence which was adduced throughout the hearing and by the legal submissions made in respect thereof.
Brief reference to Witnesses
Description of Apparatus:
In basic terms, this is how the Intoxilyser operates. The Intoximeter EC/IR operates in a somewhat different way essentially using two detection systems instead of one. However, for the purposes of these cases nothing turns on this distinction.
Step No. 1 – Blank:
This step is designed to ensure that there is no alcohol in the atmosphere of the garda station where the test is to be carried out. The result is referable to the last blank of the previous test, no matter when that was performed. The result must be within a certain limit or tolerance of the previous result, which is 0.49 micrograms per 100 millilitres of breath. If the machine should indicate a level of alcohol in excess of this measurement, then the message, "ambient fail", will display and the remainder of the cycle, will abort.
Step No. 2 – Simulator Check 1
A sample of gas, with a known alcohol level, is now injected into the system. The result must be within known limits, that is 35 micrograms per 100 millilitres of breath (35 ug/100 ml). The machine is programmed to operate this test result within a tolerance of plus or minus 2, or more accurately to a reading of 32 - 37.9. Any test result within this range is acceptable. Any result, either below or in excess of this range, will result in the machine aborting.
Step No. 3 – Blank
This part of the cycle is to ensure that there is no alcohol left in the system after simulator check No. 1. This is known as "a purging function".
Step No. 4 – Breath Specimen 1
The arrested person is required to exhale his breath into the apparatus. The sample given is continuously analysed by the machine, which firstly determines whether the subject has significant amounts of alcohol in his or her upper breath. This may have resulted from a recent drink, from regurgitation or vomiting or through the use of a breath freshener/deodoriser. If there is mouth alcohol in a particular quantity then, a message to that effect will be displayed and the cycle will come to an end. If there is no mouth alcohol then the machine will recognise the point at which the specimen contains deep lung breath (alveolar breath), which is the target breath for the test. When so determined, it will calculate in micrograms the alcoholic content of the sample.
Step No. 5 – Blank
This part of the process once more purges the suspect's breath from the chamber of the machine.
Step No. 6 – Breath Specimen 2
Breath Specimen two: the process by which breath specimen one was given and analysed, is repeated with the second specimen. The amount of alcohol detected cannot exceed by 15% the result of Breath Specimen one. If it should then a message, "breath difference" will be displayed and the cycle will be at an end.
Step No. 7 - Blank
Once more, this purging part of the cycle must be within 0.49 ug/100 ml of the previous purging result.
Step No. 8 - Simulator Check 2
This procedure is identical to and must operate within the same restrictions as apply to Simulator Check 1.
Submissions of Plaintiffs
It is a fundamental requirement of our law that any person charged with an offence is afforded, throughout the criminal process, fair procedures and is tried on that offence in due course of law. What satisfies these obligations will depend on the particular circumstances of each charge and each accused person. In this case it is, in essence, claimed that by reason of a combination of the following set of circumstances, the plaintiffs have been deprived of any reasonable opportunity of defending themselves, on the charges presently levelled against them, and accordingly, in each of their cases, there is a breach of fair procedures and a violation of Articles 38.1, 40 and 40.3 of the Constitution. These infringements of our law as claimed on behalf of the plaintiffs, lead inevitably to the consequence, that ss. 13, 17 and 21 of the Road Traffic Act, 1994 are contrary to the Constitution of Ireland. The circumstances above mentioned arise out of the practical operation of these said statutory provisions. When a person is arrested and brought to a garda station, on suspicion of having consumed an intoxicant, a member of An Garda Síochána may decide to further his investigations either, by the use of the breath analysis apparatus or by requiring a specimen of blood. In the latter case, the detained person has an option of providing a specimen of urine instead of blood, but he has no input whatsoever into the primary decision of invoking the use of either the breath test or the blood test. This is a matter solely at the discretion at the relevant member of An Garda Síochána. Indeed under s. 13(1) of the Act of 1994, the gardaí are in theory given the power to proceed either by way of a breath sample or a blood sample or both. There is no question, in any of the instant cases, of the gardaí operating otherwise than through breath analysis.
Having made that decision the arrested person must, under criminal sanction, once having being required to so do, provide two samples of his breath each within approximately a three minute period. The apparatus will then produce two identical statements, showing both readings but also containing the alleged concentration of alcohol in the breath for the purposes of s. 49(4) of the Act of 1961. This is the
"s. 17(2) certificate". Under the provisions of s. 21(1), that certificate, in any subsequent prosecution of the arrested person for any offence under the Road Traffic Acts 1961 - 1994, "shall, until the contrary is shown, be sufficient evidence", of the facts stated therein "without proof of any signature on it or that the signatory was the proper person to sign it …and of compliance by the member of the Garda Síochána concerned with the requirements imposed on him by or under this part prior to and in connection with the supply by him pursuant to s. 17 (2) of such statement". In reality, therefore, given this statutory presumption, this certificate, since it will have specified a concentration of alcohol above the legal limit, will, save in the most exceptional cases, be the equivalent, for that person of a court conviction, or as it has been referred to, "a conviction by printout".
(a) The statutory safeguard contained in s. 17(1)(b) of the Act of 1994, whereunder the higher of the two readings shall be discounted for the purposes of s. 49(4) of the Act of 1994,
(b) The administrative safeguard of reducing that lower figure by 17.5%, and
(c) The judicial safeguard in the appropriate case of authorising an inspection of the machine in question,
it is submitted that neither individually or collectively, are these sufficient to satisfy or fulfil the essence of fair procedure or the essentials of a fair trial.
This is because an accused person has no reasonable or realistic opportunity of defending himself against this type of prosecution evidence. Given that the breath
apparatus is not, in functional terms, capable of providing a split sample, and whilst a provision (which does not exist) for a third specimen of breath might mitigate the severity of this complaint, nevertheless, the only true way of overcoming the constitutional invalidity of this statutory regime, is by giving such an arrested person the right to opt for a blood or urine sample, in the event of the breath analysis proving positive. In that way, such an accused person would have the same opportunity of defending himself, as he had prior to the bringing into force of the aforementioned provisions of the Act of 1994. Therefore, given the absence of this option, the result is that the impugned sections cannot be legally redeemed.
"Shortly put, it is contended that, since the effect of the statutory provisions is to make the Bureau's analysis of a sample of a suspected person's urine and its certificate stating the concentration of alcohol found in that sample a vital and, in many ways, a very compulsive proof on a charge of this description, and since the statutory provisions also provide for the giving to the suspected person of an identical sample, it is clearly envisaged that the suspected person, if eventually charged, should have had an opportunity to have the sample separately analysed and to contest the presumptive correctness of the Bureau's analysis. Apart from the question whether that analysis indicated the commission of the offence, it is quite obvious that the extent or quantity of alcohol found in the specimen is a major matter affecting the penalty to be imposed upon conviction. In order, it is urged, for the person charged to be able to come to a conclusion as to whether he should contest the correctness of the analysis, it is essential that he knows the result of that analysis and, possibly, that he knows the identity of the person who purports to have carried it out, lest such person should not be a qualified person within the relevant statutory provisions. It is said that the failure at all stages to supply that information upon request was a denial of natural justice".
"there is an obligation on the prosecuting authorities in a charge under s. 49 of the Road Traffic Act, 1961 where they become specifically aware that the person charged has not received a copy of the certificate and requires one to supply him with one in such good time as to provide him with a realistic opportunity to have the specimen which he has retained analysed and to contest the validity or correctness of the certificate which was issued…. I accept the contention made on behalf of the prosecutor that this court has no way of knowing whether a specimen taken in August, 1979, would be capable of any accurate or probative analysis in May, 1981, and that therefore there is a fundamental want of fair procedures in the refusal or failure of the prosecuting authorities to supply a copy of the certificate upon demand and request…. On this ground alone even if all other grounds urged on behalf of the prosecutor had failed, I would have been satisfied to disallow the cause shown."
"In such a case the accused person is faced with material evidence which is under the control and power of the prosecuting authorities and which constitutes as Finlay P. described it "a vital and in many ways a very compulsive proof on a charge of this description". Clearly the courts envisage that an accused person be afforded every reasonable opportunity to inspect also the material evidence in order adequately to prepare his defence."
Despite the finding that the gardaí had not acted with any deliberate intention of depriving the applicant of access to his vehicle the learned judge went on to hold "[n]onetheless, the Gardaí's action in the circumstances amounted to a breach of the rule of fair procedures. The applicant has accepted that he was in the stolen car unlawfully when it crashed, but he has denied driving it. The court of trial will now only have evidence of Garda visual identification and of the applicant's denial upon which to base its decision. It has in effect been deprived of possible corroborative evidence of the applicant's denial. Consequently, I am satisfied that the applicant's opportunities of defending his case have been materially affected to his detriment." Having then emphasised that it is the opportunity to inspect which is crucial, even though nothing of materiality may be found, the judge concluded that "the authorities establish that evidence relevant to guilt or innocence must, so far as is necessary, and practicable, be kept until the conclusion of the trial. These authorities also apply to the preservation of articles which may give rise to the reasonable possibility of securing relevant evidence".
"We all know that no machine is infallible and if, despite this knowledge Parliament had intended that breath testing devices should be treated as virtually infallible, I would have expected such an intention to be expressed in clear and direct language. I say virtually infallible because that is the effect of limiting a challenge to 'direct evidence of malfunction' which the motorist cannot, in practice, obtain, or a blood or urine test which the police are entitled to refuse unless the reading is below 50 micrograms. Nowhere in the legislation can I find any indication that Parliament intended such a result.
Suppose that a teetotaller after dinner with people of the highest repute, two bishops if you will, forgets to turn on his lights and is stopped by the police. He is asked to take a roadside breath test and indignantly but inadvisably refuses. He is arrested and taken to the police station. Then he thinks better of his refusal. He agrees to supply two specimens of breath and the machine to his astonishment shows very high readings. He asks to be allowed to prove the machine wrong by supplying a blood or urine specimen. The police agree and he gives a blood specimen. An analysis shows no alcohol in the specimen. It is virtually certain that the police would accept the analysis and he would not be prosecuted. But if he were prosecuted it is equally certain that the magistrates would prefer the analysis and he would be acquitted. But now suppose that the police refuse his request to supply a blood or urine specimen because the reading on the machine is over 50 micrograms. If he is to be convicted without the opportunity of calling the two bishops as witnesses to the fact that he had drunk nothing that evening and inviting the magistrates to draw the inference that the machine must have been unreliable? If he can invite the magistrates to draw such an inference from the work of the analyst, why should he not invite them to draw the inference from the word of the bishops?
In my view it would require the clearest possible wording to show that Parliament intended such an unjust result. If Parliament wishes to provide that either there is to be an irrebuttable presumption that the breath-testing machine is reliable or that the presumption can only be challenged by a particular type of evidence then parliament must take the responsibility of so deciding and spell out its intention in 'clear language'.
"the purpose of s. 8(2) of the Road Traffic Act, 1988 manifestly is to provide an accused person with the safeguard of a blood or urine sample in circumstances where it is considered that the proportion of alcohol in the breath is low enough to permit of a reasonable possibility of error. It is to be inferred, in my judgment, from s. 8(2) that Parliament considered that where an approved device recorded a proportion of alcohol of more than 50 micrograms of alcohol in 100 millilitres of breath, there was no reasonable requirement for some other form of sample".
The judge then went on to deal, at paras. 32-33, with the submission that in the absence of such an entitlement, the trial of Mr. Burton was contrary to Article 6 of the European Convention on Human Rights. The judge however refused to accept such a submission since
"(a) …. ; a doctor would have to be called to the police station; (b) there had been a quantitative measurement of the extent to which the appellant had consumed excess alcohol; and (c) that had been done in circumstances, and on the basis found by the magistrates, by the device which had been approved by the Home Secretary … For present purposes the important words of Article 6 are that the accused person is to have 'adequate facilities' for the preparation of his defence. Assuming, without deciding, that those facilities could include the creation of evidence such as a blood sample in circumstances such as the present, Article 6 does not require that to be done in every case. The facilities for the preparation of the defence need not be perfect. They must be adequate. The purpose of the test of adequacy is to ensure that there is no real risk of injustice if facilities other than those which are adequate are not provided. Parliament has in section 8(2), in my judgment, expressed the legislative opinion that where the proportion of alcohol in the breath is no more than 50 microgrammes of alcohol in 100 millilitres of breath, adequate facilities do require a second sample of blood or urine, but not where the sample of breath is greater. A sample of blood or urine is certainly not necessary where the sample is so greatly in excess of the 50 microgrammes of alcohol in 100 millilitres of breath stipulated in section 8(2), as in the present case.
The provisions of Article 6 are, of course, mandatory, but in an area such as the one in question, it is well established that the European Court accepts that national legislatures, and indeed national courts, have a measure of discretion as to what is to be considered adequate, what is necessary, and what goes beyond the adequate and is unnecessary. That margin of appreciation applies to the provisions of s. 8(2) of the Road Traffic Act, 1988. There is no reason to believe on the material before me that the qualification and identification of the circumstances in which a second sample is required, stipulated by Parliament, are such as to lead to a risk of unfair trials. There is nothing in the present case, on the basis of which I am now considering this second issue, to indicate that there was any risk of a denial of the right to a fair trial in the circumstances where the 50 microgrammes of alcohol limit had not simply been exceeded, but exceeded by a very substantial margin."
(a) that in principle it is not possible to justify, the admittedly pragmatic legislative judgment that where the reading is below 50 microgrammes the alternative independent test should be available as a necessary safeguard but where the reading in fact is in excess of 50 microgrammes this safeguard is not required. This, he claims whilst representing a pragmatic legislative judgment is nevertheless not consistent with the right to a fair trial or one in due course of law.
(b) that the learned judge was erroneous in proceeding effectively on the judicial assumption that the difference between a reading of 35 microgrammes and 50 microgrammes, is so great that there can be no possibility of error where the print out exceeds 50 microgrammes. This reasoning is tantamount to a declaration that once the specimen exceeds a reading of 50 microgrammes, the apparatus in question is infallible and that such a reading creates an irrebutable presumption of guilt of the accused person. That presumption of course would be unconstitutional in this jurisdiction having regard to the decision in Maher v. A.G., and the Murphy case supra. Moreover, the scientific evidence adduced in the present actions could not reasonably lead to such a factual conclusion.
(c) that the statutory regime in England differs, inter alia, in one fundamental way from that pertaining under the Road Traffic Act, 1994. There are no graduated penalties in the neighbouring jurisdiction which has one cut off point only. In Ireland of course there are, in addition to the basic minimum figure of 35 microgrammes, also two further cut off points at 44 microgrammes and 66 microgrammes, which to certain individuals, including Mr. Quinlan and Mr. Purcell in this case, are almost as important as the original level of 35 microgrammes.
(d) that, at least in part, the decision of Stanley Burton J. was based on his understanding and application of the margin of appreciation, which doctrine of course would have no application in this country in the context of either Article 38.1 or Article 40.3.1 of the Constitution, and
(e) the reasoning of the said trial judge is at variance with the various decisions of the Supreme Court in cases such as Braddish v. D.P.P. and Bowes v. D.P.P., supra, which as previously indicated were following the decision of Lynch J. in Murphy v. D.P.P. [1989] I.L.R.M. 71.
Overall, therefore, it is claimed that the substance of the decision of Stanley Burton J. does not represent correctly the position in this country.
"I am satisfied that the appellant had an arguable case that an inspection was reasonable given the relative novelty of the machine in particular and the fact that for all practical purposes he could be convicted on the say so of a print out. What the first named respondent may have overlooked is that this print out gives rise only to a rebuttable presumption."
"The fact that the certificate is rebuttable has significance having regard to the decision of this court in Maher v. Attorney General [1973] I.R. 140. Originally, in relation to prosecutions arising out of specimens of blood or urine under the Road Traffic Act, 1968 the equivalent certificate gave rise to an irrebuttable presumption. That provision was held to be unconstitutional by this court in Maher's case. The court held that the administration of justice in a criminal trial was confined by the Constitution to the courts and judges constituted and appointed in accordance with the provisions thereof and therefore that the essential ingredients of the offence with which an accused was charged was necessarily reserved to such courts and judges. Once this certificate was conclusive, the judicial power of the District Judge was infringed and this could not be valid having regard to the Constitution. It can be argued with some validity that apart from cases with very unusual facts the presumptions arising from the certificates in the intoximeter cases are for all practical purposes irrebuttable notwithstanding the statutory provision to the contrary if there are no circumstances where an accused can be permitted through an independent expert of his own to investigate the reliability of the apparatus or at the very least if it is not generally known in what circumstances (if any) such apparatus can be unreliable."
Given this very strong passage on the combined consequences of a s. 17(2) certificate and s. 21(1) of the Act of 1994, it is all the more incumbent on the legislature to ensure, that any interference with the right to fair procedures or with a trial in due course of law, is no more than what is absolutely necessary to achieve legitimately the objective or aim in question. That balance has not been adhered to in the circumstances of these cases.
AUSTRALIA
| STATE | WHAT A POLICE OFFICER CAN DEMAND |
INDIVIDUALS' RIGHTS | LEGISLATIVE PORVISIONS |
| South Australia | Alcotest Breath analysis Blood test in particular circumstances |
The police must facilitate blood test at the request of an incapacitated person | Road Traffic Act 1961 (SA) sections 47. |
| New South Wales | Random breath test. Breath analysis following arrest. Blood test in particular circumstances. |
A person who is required to submit to a breath analysis may request the police officer making the requisition to arrange for a medical practitioner to take, in the presence of a police officer, a sample of that person's blood, for analysis in accordance with this section at that person's own expense. | Part 2 of the Road Transport (Safety and Traffic Management) Act 1999 No. 20 and in particular Sections 14, 15(1), 18(1) Road Transport (Safety and Traffic Management) Amendment (Blood Sampling) Act 2000 – Schedule 1 0 Amendment of Road Transport (Safety and Traffic Management) Act 1999 No. 20. |
| Victoria | Preliminary breath test. Breath Analysis Blood in certain circumstances. |
A person who is required to furnish a sample of breath for analysis may, immediately after being given the certificate, request the person making the requirement to arrange for the taking in the presence of a member of the police force of a sample of that person's own expense by a registered medical practitioner or an approved health professional nominated by the member of the police force. |
Road Safety Act 1986 and in particular Part 5, Section 55 |
| Western Australia | Breath sample Breath analysis Blood in particular circumstances |
A person who might be required to provide a sample of his breath for analysis or to allow a medical practitioner or registered nurse to take a sample of his blood for analysis may himself require that, instead of so doing, he be permitted to allow a medical practitioner or registered nurse nominated by him to take a sample of his blood for analysis. |
Road Traffic Act 1974 and in particular section 66 |
| Tasmania | Breath Test. | Once an individual completes a breath analysis and is handed a written statement he may immediately request that a sample of his blood be taken. |
The Road Safety (Alcohol & Drugs) Act 1970 and in particular Division 2. |
THE UNITED STATES OF AMERICA
| STATE | WHAT A POLICE OFFICER CAN DEMAND |
INDIVIDUALS' RIGHTS | LEGISLATIVE PROVISIONS. |
| California | Breath Test Blood test |
If the person is lawfully arrested for driving under the influence of an alcoholic beverage, the person has the choice of whether the test shall be of his or her blood or breath and the officer shall advise the person the he or she has that choice. |
2004 California Vehicle Code |
| Colorado | Preliminary screening test | If a person who is twenty-one years of age or older requests that said test be a blood test, then the test shall be his or her blood; but, if such person requests that a specimen of his or her blood not be drawn, then a specimen of such person's breath shall be obtained and tested. |
Title 42 Vehicles and Traffic Regulation of Vehicles and Traffic, Article 4, Regulation of vehicles and Traffic Part 13 alcohol and drug offences. |
The Defendants' Submissions:
"s. 17(1) provides that where, as here, the apparatus determines that each specimen has a different concentration of alcohol, the specimen with the lower concentration of alcohol is to be taken into account for the purposes of s. 49(4) and the other specimen is to be disregarded. The italicised text [referring to the words "taken into account"] does not exclude the possibility that a concentration of alcohol in the breath for the purposes of that provision could be less than the actual reading of alcohol in the breath recorded by the intoximeter.
The calculation affected by the intoximeter has the effect of providing a margin of error for the benefit of the accused. Whilst it may be the case that the prosecutor is not obliged to provide for such a margin, there is nothing to indicate that the fact of its provision is in any way unlawful. The deduction is incapable of bringing about the conviction of an innocent person."
Accordingly, whilst this particular issue was not relied upon in the same way as many other points, nevertheless, even if it had been, it lacked, in the defendants' view, any substance.
"The absence of doctrinal development in this area reflects, in part, the difficulty of developing rules to deal with evidence destroyed through prosecutorial neglect or oversight. Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed. Moreover, fashioning remedies for the illegal destruction of evidence can pose troubling choices. In nondisclosure cases, a court can grant the defendant a new trial at which the previously suppressed evidence may be introduced. But when evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing – as the California court of appeal did in this case – the State's most probative evidence.
One case in which we have discussed due process constraints on the Government's failure to preserve potentially exculpatory evidence is Killian v. United States 368 U.S. 231 (1961). In Killian, the petitioner had been convicted of giving false testimony in violation of 17 USC 1001. A key element of the Government's case was an investigatory report prepared by the Federal Bureau of Investigation. The Solicitor General conceded that, prior to petitioner's trial, the F.B.I. agents who prepared the investigatory report destroyed the preliminary notes they had made while interviewing witnesses. The petitioner argued that these notes would have been helpful to his defence and that the agents had violated the Due Process Clause by destroying this exculpatory evidence. While not denying that the notes might have contributed to the petitioner's defense, the court ruled that their destruction did not rise to the level of constitutional violation:
'If the agent's notes … were made only for the purpose of transferring the data thereon …, and if, having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practices, it would be clear that their destruction would not constitute an impermissible destruction of evidence nor deprive a petitioner of any right. Id., at 242.'
In many respects the instant case is reminiscent of Killian v. United States. To the extent that respondents' breath samples came into possession of California authorities, it was for the limited purpose of providing raw data to the Intoxilyzer. The evidence to be presented to the trial was not the breath itself but rather the Intoxilyzer results obtained from the breath samples. As the petitioner in Killian wanted the agents' notes in order to impeach their final reports, respondents here seek the breath samples in order to challenge incriminating tests results produced with the Intoxilyser.
Given our precedents in this area, we cannot agree with the California Court of Appeal that the State's failure to retain breath samples for respondents constitutes a violation of the Federal Constitution. To begin with, California authorities in this case did not destroy respondents' breath samples in a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland and its progeny. In failing to preserve breath samples for respondents, the offices here were acting in good faith and in accord with their normal practice." Killian v. United States, supra at 242. The record contains neither an allegation of official animus towards respondents nor of a conscious effort to suppress exculpatory evidence."
"More importantly, California's policy of not preserving breath samples is without constitutional defect. Whatever duty the Constitution imposes on the State to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defence. To meet this standard of constitutional materiality, see United States v. Agurs, 427 U.S., at 109-110, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Neither of these conditions is met on the facts of this case.
Although the preservation of breath samples might conceivably have contributed to respondents' defences, a dispassionate review of the Intoxilyzer and the California testing procedures can only lead one to conclude that the chances are extremely low that preserved samples would have been exculpatory. The accuracy of the Intoxilyzer has been reviewed and certified by the California Department of Health. To protect suspects against machine malfunctions, the department has developed test procedures that include two independent measurements (which must be closely correlated for the results to be admissible) bracketed by black runs designed to ensure that the machine is purged of alcohol traces from previous tests. … In all but a tiny fraction of cases, preserved breath samples would simply confirm the Intoxilyzer's determination that the defendant had a high level of blood alcohol concentration at the time of the test. Once the Intoxilyzer indicated that respondents were legally drunk, breath samples were much more likely to provide inculpatory than exculpatory evidence.
Even if one were to assume that the Intoxilyzer results in this case were inaccurate and that breath samples might therefore have been exculpatory, it does not follow that respondents were without alternative means of demonstrating their innocence. Respondents and amici have identified only a limited number of ways in which an Intoxilyzer might malfunction: faulty calibration, extraneous interference with machine measurements, and operator error. … Respondents were perfectly capable of raising these issues without resort to preserved breath samples. To protect against faulty calibration, California gives drunken driving defendants the opportunity to inspect the machine used to test their breath as well as that machine's weekly calibration results and the breath samples used in the calibrations. … Respondents could have utilised this data to impeach the machine's reliability. As to improper measurements, the parties have identified only two sources capable of interfering with test results: radio waves and chemicals that appear in the blood of those who are dieting. For defendants whose test results might have been affected by either of these factors, it remains possible to introduce at trial evidence demonstrating that the defendant was dieting at the time of the test or that the test was conducted near a source of radio waves. Finally, as to operator error, the defendant retains the right to cross examine the law enforcement officer who administered the Intoxilyzer test, and to attempt to raise doubts in the mind of the fact finder whether the test was properly administered.
We conclude, therefore that the due process clause of the 14th Amendment does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath analysis tests at trial."
"I have no doubt that our jurisprudence could benefit from exposure to the thorough and earnest, not to say fraught, treatment of the topic in the United States courts."
"Trombetta requires that a court determine whether the evidence possesses 'an exculpatory value that was apparent before the evidence was destroyed,' and whether it was 'of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means'. In Trombetta neither requirement was met. But it is important to note that the facts of Trombetta differed significantly from those of this case. As such, while the basis standards set by Trombetta are controlling, the inquiry here must be more finely tuned.
In Trombetta, samples of breath taken from suspected drunk drivers had been discarded after police had tested them using an Intoxilyzer, a highly accurate and reliable device for measuring blood-alcohol concentration levels. The court reasoned that the likelihood of the post-test samples proving to be exculpatory was extremely low, and further observed that the defendants were able to attack the reliability of the test results by presenting evidence of the ways in which the Intoxilyzer might have malfunctioned. This case differs from Trombetta in that here no conclusive tests were performed on the relevant evidence. There is a distinct possibility in this case, one not present in Trombetta, that a proper test would have exonerated the respondent, unreubtted by any other conclusive test results. As a consequence, although the discarded evidence in Trombetta had impeachment value (i.e., it might have shown that the test results were incorrect), here what was lost to the respondent was the possibility of complete exoneration."
It was submitted that Blackmun J. felt that it was necessary to distinguish between different types of evidence in determining compliance and non compliance with the due process clause of the Fourteenth Amendment. At p. 69 of the report he concluded, insofar as the quote is relevant to the evidence produced by an Intoxilyzer "In a situation where the substance of the lost evidence is known, the materiality analysis laid out in Trombetta is adequate. But in a situation like the present one, due process requires something more."
Accordingly, it is claimed that the obligation upon the gardaí, whether to search for or to preserve evidence, does not extend to the necessity of retaining a specimen of breath which has been provided pursuant to s. 13 (1) of the Act of 1994.
"There is however one passage from the decision of the Court of Appeal in Kerschberg's case to which I should refer. Referring to a submission that the analyst's certificate was invalid because the actual analysis was carried out by the analyst's assistant as well as by the certifying analyst, Shaw L.J., said (at [1976] RTR 531):
'The fact, said Mr. Leech, was that the analysis was shared between Ms. Lowe and her assistant. It was not, therefore, an analysis by Ms. Lowe who alone was duly qualified. This Court does not agree. The certificate of course must be signed by an authorised analyst possessing the qualifications prescribed, but it does not involve that every stage and step of the analysis must be done personally by the analyst. The analyst must be in a position to give that certificate in the sense that the whole process of analysis was done under his or her control so that he or she could vouch for the propriety of the procedure and could support the results which followed.'
Under the code I am considering, the Bureau vouches for the propriety of the procedures which have been undertaken, and, in certifying a figure in the certificate as the concentration of alcohol in the specimen examined, it gives a figure which is different to that found by either of an analysts who carried out the test, no doubt for sound scientific reasons that determines that the concentration of alcohol is the mean of the result of the two tests, less 6%. Further as, the Bureau is a body corporate and acts through its authorised officers and agents, it cannot be said that the certificate is based on hearsay evidence – it is based on knowledge acquired by the bureau in the same way as any corporate body acquires knowledge.
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Section 22 makes a distinction between an analysis of the specimen the bureau receives, and the determination of the concentration of alcohol in it, and, it seems to me that the second test which took place in this case can properly be regarded as part of the process (which involves taking a mean of the two tests and deducting 6%) to enable the determination to be made by the Bureau, and that the person who carried out the first test can properly be regarded as the person who carried out the analysis."
The s. 17 certificate, it is claimed, is quite different from that referred to in s. 63(3) of the Bill of 1996. Such a certificate relates to the scientific and technical analysis of alcohol in the breath. That is but one element of an offence contrary to s. 49(4) of the Act of 1961. To say as the plaintiffs have, that this method of proof is tantamount to a defendant's conviction by certificate is erroneous. There are, it is pointed out, a great number of other proofs required which the prosecution will have to satisfy in order to obtain a conviction under this said section. Some but not all of these are:-
(a) that the accused was the person driving or attempting to drive;
(b) that what was being driven or what was the subject of attempting to drive was a mechanically propelled vehicle;
(c) that the driving or attempting to drive occurred in a public place;
(d) the timing of the driving or the attempt;
(e) that the accused was validly arrested;
(f) that a valid s. 13 requirement was made.
Accordingly, this type of written evidence which is widely provided for by statute does not impact or constitute a serious element in violation of an accused person's right to a trial in due course of law or his right to a fair procedure.
The Plaintiffs Evidence
Notwithstanding such particle size however, he was happy to accept that these machines, if correctly set up and properly managed, had within them a technology which was perfectly capable of producing an accurate reading of a person's breath alcohol level.
In fairness to Dr. Deane he acknowledged fully that he was unfamiliar with the software.
These concerns were not borne out by the true expert evidence given. In fact such a view could be said to confuse the six monthly test with the actual cycle when the apparatus is in functioning mode. Evidence was given by Mr. Blyth that this machine will detect any alcohol in the ambient air in excess of 0.49 ug/100 ml. Any level beyond that will result in the process being aborted. When this was pointed out to Dr. Deane he accepted that his concerns in this regard were not well founded.
In cross-examination however, he eventually conceded, having first maintained his original position that, as a matter of physics, this answer of his could not be correct. He agreed that there was no scientific principle underlying his views. In fact the true position seems to be that when a lesser concentration of alcohol, in a volume of air, is mixed with a volume of air containing a greater concentration of alcohol, then dilution occurs and not the reverse. I therefore can only conclude that this criticism no longer stands.
In conclusion therefore I cannot accept any of the criticisms levelled against this apparatus by Dr. Deane. His views in my view have not survived evidential scrutiny.
There is no evidence in my view which could conceivably justify the reiteration of this allegation. Each specific example given is capable of a particular reply; which is, that when the machine is out of tolerance on the gas test, it will according to its predictive pattern, abort. That is what it is programmed to so do. It is operating precisely according to manufacturer's specifications when that occurs. If it did not, then an entirely different and potentially most troubling situation would arise. But it does. Secondly on the ambient fail point see para. 35 above. In general, it is most difficult to understand how a witness can arrive at such a conclusion, when by his free admission, he does not know how the methodology works. His answer, that one doesn't have to be an expert on the combustion engine to say whether a car functions or not, falls, with all due respect, a good deal short of what is required. This apparatus is highly technical, complex and most scientific. I find it difficult to accept how one can be so critical, by way of expert evidence, on a device when that person's understanding of it is, to say the least, wanting. I therefore do not believe that he is in anyway justified by insisting upon the correctness of this allegation.
Finally, there were a number of other matters touched upon by Mr. Cuffe which were responded to in the evidence of the defendants witnesses. This evidence, for the reasons above given and those next appearing is, in my view much more compelling than that offered by this witness. Accordingly, I am forced to the conclusion that the allegations advanced by Mr. Cuffe, on behalf of the plaintiffs, with regard to the apparatus in question are not well founded.
The Defendants Evidence
(a) calibration certificate
(b) certificate of installation
(c) certificate of commissioning,
(d) minor visits
(e) Ireland's certificate of testing
(f) Q.S.L. service report
(g) Q.S.L. record of results.
Whilst the Bureau frequently gets requests for more documentation, by and large the supply of any information in addition to that above listed is a matter for court direction.
That Challenge:
"s. 17(2) certificate" is virtually identical to the legal effect of the copy certificate just mentioned. This, in the case of breath, is by virtue of s. 21(1) of the 1994 Act (see para. 5 above) and in the case of blood/urine by virtue of s. 23(2) of the 1978 Act whose provisions state that a duly completed certificate "shall until the contrary is shown be sufficient evidence of the facts certified to in it …".
The crucial issue therefore is whether by a combination of ss. 13, 17 and 21 of the 1994 Act, and the exercise by the relevant members of their discretion to seek breath specimens, the plaintiffs rights have been so impaired, that in order to vindicate their respective positions, this Court should issue a declaration that the said sections are repugnant to the Constitution.
Whilst I take the point that this was a case stated and as a result no evidence was tendered before the High Court, nevertheless the opinion of the learned judge is, within the context of the point raised and the submission made, highly relevant as expressing his approval for the process in question. This approval was not I feel qualified by the suggestion that even with the 17% deduction, the accused person had, for the purposes of the s. 49(4) prosecution, a reading of 89 ug/100 ml.
(a) the statutory requirement under s. 17(1) of the 1994 Act, of taking the lower reading of both breath specimens,
(b) the 17.5% deduction from this reading: this is to cover, and in my view covers, all areas of relevant uncertainty which have been identified in these cases. Though administrative only, this deduction in my opinion is an essential part of the operating regime and its existence must be taken to have created a legitimate expectation that it will continue. In addition its application does not breach s. 17(1) of the Act of 1994, as per Carney J. in Curry, supra. However, lest there should be any doubt about, it its incorporation into statute law would in my opinion be desirable,
(c) the practice of waiting twenty minutes before commencing the cycle,
(d) the self diagnostic tools within both machines, to include the other tolerance levels previously discussed, as well as the two simulator checks in every cycle. According to the evidence the machines are so programmed, that, on error or malfunction, the apparatus will abort, and
(e) the significant assurance offered by Messrs Blyth and Cunliff, Professor Jones and Ms. Leavy, being underpinned by this evidence, as to result accuracy in the machines as there apply to every affected person.
Finally, though I have I think rightly emphasised the affect of s. 21(1) of the Act of 1994, nonetheless it is important to point out that the presumption in question is rebuttable and that one cannot accurately say that the provision amounts to an automatic conviction or a conviction by print out. In fact, I don't believe that Geoghegan J. in Whelan, supra, ever so concluded. On the contrary, the learned judge specifically points out that it is a rebuttable presumption only, a view which is enforced by a reference to a fuller extract from his judgment than that part which is referred to at para. 95 above. In its totality it reads "it can be argued that with some validity that apart from cases with very unusual facts the presumptions arising from the certificates in the Intoximeter cases are for all practical purposes irrebuttable notwithstanding the statutory provision to the contrary if there are no circumstances where an accused can be permitted through an independent inspector of his own to investigate the reliability of the apparatus or at the very least if it is not genuinely known in what circumstances (if any) such apparatus can be unreliable".